85 N.Y.S. 1069 | N.Y. App. Term. | 1904
The complaint in this action is as follows, viz.:
“That heretofore, and on or about August 28, 1902, in the city of New York, the plaintiff purchased from the defendant for the sum of $2,000 a certain stock of goods consisting of candies, toys, and stationery, together with certain fixtures, located in the store at No. 299 First avenue, in the city of New York, borough of Manhattan, and also the good will of the business previously carried on by the defendant in said premises, and that the plaintiff paid to the defendant therefor the sum of $2,000. (2) That the defendant, in consideration of said purchase by the plaintiff, agreed to procure for the plaintiff a lease of the said premises for two years from May 1, 1903, and, in the event of his failure to procure said lease, to repay to the plaintiff the sum of $1,500. (3) That previous to the commencement of this action, and on or*1070 about December 30, 1902, at the city of New York, the plaintiff demanded from the defendant said lease, and that the defendant has failed and neglected to procure said lease for the plaintiff. (4) That previous to the commencement of this action, and on or about the 12th day of January, 1903, the plaintiff demanded from the defendant the payment of the sum of $1,500, and that no part thereof has been paid. Wherefore the plaintiff demands judgment against the defendant for the sum of $1,500 and interest thereon from January 12, 1903, besides the costs and disbursements of this action.”
The defendant, by his answer, substantially admitted all the allegations of the complaint except the demand set forth in the third paragraph of the complaint, which he denied, and then set up two distinct defenses, viz.: That on or about the 2d day of February, 1903, the defendant was ready, able, and willing to procure for said plaintiff a lease of the said store for two years commencing on May x, 1903, and ever since that time has been and still is ready and willing to procure the same for the plaintiff, but that the plaintiff has refused and still refuses to accept the same; and (2) that the plaintiff on or about the 9th day of February, 1903, and for the purpose of preventing the defendant from procuring said lease for two years from May 1, 1903, and without the knowledge and consent of the defendant, procured, a lease of said premises for one year from said May 1, 1903, and thereby prevented this defendant from performing his part of the said agreement .to procure for the plaintiff a lease of said store. Before the plaintiff opened his case, defendant’s counsel made a motion to dismiss the complaint upon the ground that it fails to set up a cause of action, which motion was denied by the court. Plaintiff’s counsel then proceeded to make a motion for judgment on the pleadings, which motion was granted, and the jury was directed to find a verdict for the plaintiff in the sum of $1,530. From the judgment entered in favor of the plaintiff this appeal is taken.
I fail to see how this disposition of the issues can be sustained. It is quite true that no time was specified within which the defendant obligated himself to procure said lease for the plaintiff, and that, in the absence of any express provision as to time, the law implies a reasonable time within which performance is to be made. But the term “reasonable time” is a relative one, and its meaning depends entirely upon the attendant circumstances. It has been held in one case to mean as soon as convenient; in -another, the least possible time after an event; and in many others it was held that such time must be determined according to the circumstances of the case, and with particular reference to the means and ability of the person by whom the contract is to be performed. Am. & Engl. Encyc. of Law (2d Ed.) vol. 23, p. 971, and cases there cited. For the purpose of determining what is a reasonable time it had been held that evidence of the conversations of the parties may be admitted to show the circumstances under which the contract was made and what they thought was a reasonable time. Cocker v. Franklin Hemp, etc., Mfg. Co., 3 Sumn. (U. S.) 530, Fed. Cas. No. 2,932; Coates v. Sangston, 5 Md. 121. And so it has been held that reasonable time will not begin to run until some one interested in the matter calls for something to be done respecting it. Graham v. Van Diemens’ Land Co., 11 Exch. 101, 30 Eng. L. & Eq. 579, quoted in Cameron v. Wells, 30 Vt. 633. The
As the reasons already stated necessitate a new trial, it is not necessary to discuss other points urged on the brief of appellant’s counsel, except to say that, the law applicable to the case being as stated, it seems that even with the allegation of a demand the complaint is defective in not alleging that the time which intervened between the execution and delivery of the bill of sale and the making of the demand was a reasonable time within which the defendant should have procured the case.
The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.