13 Johns. 56 | N.Y. Sup. Ct. | 1816
,The principal question, in this case, is, whether the defence set up on the part of the defendant, and received by the judge, was admissible under the general issue. The note upon' which the action is founded, Was to be paid iri drawing plaster from Ithaca to Owego, and the defence was an offer of performance on the part of the defendant. From the testimony it very ■. satisfactorily appeared that every thing was done by. the defendant, which could be required of him, towards a performance of his contract, and that the non-performance was attributable solely to the neglect or default of the plaintiffs. This defence was proper and admissible under the general issue; it went to show that the plaintiffs riever.had any cause of action against the defendant. The contract necessarily "implied that the plaintiffs were to have the plaster at Ithaca, ready to transport. This Was in the nature of a condition precedent, and1, from the evidence, it appears not only that the defendant went repeatedly for the purpose of transporting the plaster, the delivery of which was refused, but that for some weeks before the expiration of the time limited for the performance, the plaintiffs had no plaster at Ithaca. Any matter which shows that the plaintiffs never had any cause of action may be
