9 Wend. 135 | N.Y. Sup. Ct. | 1832
By the Court,
The agreement as stated in the first count, which is the least imperfect of the three first counts, does not specify when or where the contract to be given by the defendant was to be delivered, nor when, nor in what manner the balance of the consideration money was to be paid or secured,.and it leaves the quantity of acres in the lot uncertain, and of course the balance of the purchase money to be paid. Nor does it specify the estate or interest which the defendant was bound to convey. The contract in its terms being defective in these respects, the plaintiff should have declared on it according to its legal effect, and supplied the deficiency by proper averments. It is not always sufficient to state the contract as it was in fact expresssd. Lawes on Plead. 78, 80. 4 T. R. 314. The time when a promise is to be performed is always material, and must be stated according to the truth,, and proved as stated—whether it be upon the request of the plaintiff, or on a particular day, or in a reasonable time, Lawes, 99, 107. No time for the delivery of the contract in this case having been specified in the agreement, the plaintiff should have averred that it was to be done either upon request, or within a reasonable time, such being the legal effect of the agreement, and that such reasonable time had elapsed when the contract was demanded. Lawes, 232 to 239,
... It is unnecessary to express an opinion upon the question, whether the averment of the readiness and offer of the plaintiff to perform the agreement on his part, and to pay the balance that should be due is sufficient, or whether a formal tender should have been averred, as the aspect of the case in this respect may be varied by the contract as it may be stated in the amended declaration.
Judgment for defendant on demurrer, with leave to plain-to amend, on payment of costs.
