4 Lans. 4 | N.Y. Sup. Ct. | 1871
By the Court
This case cannot be distinguished in principle from that of Reed v. Randall (29 N. Y., 358). The action is upon a note given by the defendants for the balance of the purchase-price of a boiler manufactured by the plaintiff for the defendants, upon a contract to make and deliver the same at a future day for a specified price. The contract was in writing, and by it the plaintiff undertook to build the boiler according to a certain tracing or drawing
This is the case, as the defendants offered to.prove it, by way of defence to the note. The judge excluded the evidence,
The same rule precisely was laid down in the case of Howard v. Hoey (23 Wend., 350), which was also an executory contract for the sale of beer by a manufacturer of that article. This must be regarded as the settled law of this State in regard to executory contracts for the sale and delivery of articles of personal property at a future day. The rule, in its application, will doubtless meet with cases occasionally of hardship; as what general rule does not? But, as was pertinently remarked by Cowen, J., in Hart v. Wright (17 Wend., 275), “ Where is the exception to terminate ? If we put ourselves upon difficulty, I know not what, may eventually be brought within it.” ITis further judicious observation in the same .case is quite appropriate here: “By keeping within the pale of our own authorities, as in duty bound, we avoid, at least, a pilgrimage of litigation, if not a total subversion of the common-law rule.” It is always easy to suggest cases of hardship, and occasions for excepting such from the operation of the general rule; but courts cannot act upon any such general principle without endangering the stability and certainty of all rules and the foundations upon which the most common rights rest. It is said that the defendants here could not return the boiler after the defect was discovered, nor reasonably offer to return