6 N.Y.S. 23 | N.Y. Sup. Ct. | 1889
This action was brought to recover damages for the breach of a contract for the manufacture of certain merchandise. The allegations of the complaint in brief are that in November, 1883, the defendant entered into a contract with the plaintiff whereby it agreed to manufacture for the plaintiff 10,000 gross of Rutty’s button glove clasps, as per sample, 500
The claim is now made that the overruling of the motion to dismiss the complaint was error. In this it seems to us the appellant is clearly right. In the case of Pope v. Manufacturing Co., 107 N. Y. 61, 13 N. E. Rep. 592, it was distinctly held that the promises of the defendants to manufacture, sell, and deliver the goods, and of the plaintiff to receive and pay therefor, were mutual and concurrent, and that neither party can maintain an action against the other for a breach of that contract without proving performance on his part. This the plaintiff has utterly failed to do. He has not alleged in his complaint any demand for the goods, or any notice of willingness upon his part to receive and pay therefor. In the contract no place of delivery was mentioned, and the presumption is that the goods were to be delivered at the place of manufacture; and in order that the defendant should be put in default it was necessary, under the rule laid down by this decision, that a demand should be made, and an offer to receive the goods and pay for the same tendered. If the defendant were suing because the plaintiff had failed to receive and pay for the goods, it would undoubtedly have been necessary for it to have established that it either delivered, or offered to deliver, the merchandise within the time mentioned by the contract. If it would have been necessary for the defendant to prove this to recover upon the contract, it was certainly equally incumbent upon the plaintiff to prove that he had either demanded, or had signified his willingness to receive and pay for, the merchandise, during the life of the contract, before he could recover damages for any breach.
There is no allegation of a demand until after the expiration of the contract, and.there is no allegation in the complaint of an extension of the contract,
We are of opinion, therefore, that the failure to allege this extension, the failure to allege willingness to receive and pay for the merchandise during the life of the contract, and therefore of willingness to perform upon the part of the plaintiff, was a fatal defect, and precludes a recovery upon the complaint as it now stands. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide event.
Cullen, J., concurs.