18 Barb. 179 | N.Y. Sup. Ct. | 1854
The plaintiffs had entered into a contract with Roberts & Co., by which they were to execute a, mortgage on machinery, &c. to Roberts & Co., and assign a policy of insurance to the latter to the amount of $10,000, and Roberts & Co. were to advance to them this sum of $10,000. The two acts—the giving of the securities and the payment of the money— were to be contemporaneous: either party would fulfill his part of the contract, by being ready and offering to perform it, if the other would perform his part. If the plaintiffs had executed the mortgage, and assigned the policy, and given them to an agent and told him to go and complete the execution of the contract with Roberts & Co., the agent would be inexcusable if he delivered the securities without receiving the money. The plain
It is plain that there was no express authority to Pond to execute the securities if Roberts & Co. did not pay the money; and if the complaint had alleged that under this authority Pond had delivered the securities without the money being paid, and so had caused damage to the plaintiffs, there would be some ground for the charge. The plaintiffs now say that they meant that the securities should be delivered without the money being paid. If that was what they meant, and if they had a. right to waive the payment, they have not expressed that meaning in the complaint. The contrary would be inferred, as the payment of the #10,000 was to be the only consideratipn fo.r the mortgage, and the payment of the money was the condition on which the securities were to be given ; and until some express direction to the contrary was given Pond would be bound tp know that he was not to deliver the securities until the money should be paid, to the -satisfaction of the plaintiffs. The waiver of this condition should have been averred by the plaintiffs, if they meant to waive it.
The defendant answers that he prepared the securities and gave notice to Roberts & Co. and to the plaintiffs that he was, ready to perform the contract on his part, and requested Roberts & Co. to pay the #10,000 and receive, the securities from him, but that Roberts & Co. failed to do so, and failed to perform any of the provisions of the contract incumbent on them to perform; and that for this reason the defendant did not deliver the, securities. The plaintiff demurred to this answer.
Although questions somewhat of this nature were discussed on both sides, the pleadings do not present them, and they would not have been noticed, except for the urgent desire of one side that the court should not pass them by.
The judgment of the special term is reversed, but without costs, as the decision is not on the points mainly discussed. Either party may amend his pleadings, without costs.
Clerke, J., concurred.
As between Pond and the Riders it was expressly agreed that the $10,000 was to be paid to the latter “ to be used by them for their own use and benefit and without any account to Pond.” They had a perfect right therefore to accept it in notes or checks, or in any form they saw fit ;• or, if so
If the plaintiffs then absolutely and unconditionally requested Pond to execute and deliver to Roberts &- Co. a mortgage for the $10,000, is it any answer for Pond to say that he “ gave notice that he was ready to perform, and requested Roberts &• Co. to pay the plaintiffs the $10,000 and receive the securities, and that Roberts & Co. neglected to pay the plaintiffs ?” It seems to me that such an answer by not denying admits that he refused to do what the plaintiffs requested, and what they had a right to request him to do. And as the plaintiffs, by the agreement, were to receive $10,000 as a consideration for their property sold to the defendant, to be raised by a mortgage to be executed by him on the property sold, and as he has refused to execute the mortgage which would enable them to get the money from others, he must, as the only and the just alternative, pay the money himself.
Demurrers, however, unless in very clear cases, are not encouraged by the new code ; and the party demurring, therefore, to the insufficiency of his adversary’s pleading, should be particularly careful not himself to commit the first fault. In this case the language of the complaint, it must be admitted, is not as distinct and certain as it might be. The plaintiffs, strictly, should have averred in precise terms that they requested the defendant to execute and deliver the securities, whether the $10,000 was
Judgment reversed.
Mitchell, Roosevelt and Clerke, Justices.]