Bush v. Hibbard

24 Barb. 292, 1857 N.Y. App. Div. LEXIS 51

• Court: New York Supreme Court
• Decided: June 6, 1857
• Status: Published

Opinion

By the Court, Davies, J.

The referee clearly erred in the view he has taken of the engagement of the defendant. The draft and guaranty form but one undertaking on his part—that McBurth shall deliver to Bush on demand one hundred gross of knobs, at $5 per gross. If McBurth did not deliver the knobs or any part thereof, then by the terms of the draft and guaranty the defendant was to make up the deficiency. His agreement to deliver to Bush the draft and guaranty on the cessation of the business, and the finding a balance due from Mc-Burth to Bush, does not in any degree extend his liability. It is but an engagement on his part, that on the happening of those contingencies Bush shall be put in possession of those securities, and be at liberty to enforce any claims he may have on the defendant by reason of them. .The defendant having refused to deliver them on demand, the value of them to the plaintiff became the rule of damages in this case. It becomes, therefore, necessary to ascertain what, if any things could the plaintiff recover against the defendant upon the draft and guaranty. We have seen by it, that the defendant became responsible that McBurth should deliver to Bush on demand 100 gross of knobs, of the value of $5 per gross.

The testimony clearly shows that McBurth did deliver a portion of the knobs, and that for the residue Bush agreed to accept and did accept and receive from McBurth “ quartette tops, light stand tops, and checker board tops in lieu of the knobs named in the contract.” Bush waived the agreement for the delivery of the knobs, and took other articles as a substitute therefor. This it was entirely competent for him to do, and on McBurth’s delivery to him and his acceptance of the substituted articles, the engagement of the defendant was complied with. There could therefore be no recovery against the defendant upon the draft and guaranty, and it follows that the plaintiff has sustained no damage by the refusal of the defendant to deliver to him on demand the draft and guaranty.

[New York General Term, June 6, 1857.

The plaintiff’s right to demand the draft and guaranty from the defendant by the tenor of the receipt of April 8, 1846, did not accrue until the finding of a balance due to Bush from MA Burth. This was not ascertained until the accounting which took place between them on the 16th June, 1849. The suit in the common pleas was commenced before such settlement and adjustment took place and balance ascertained.» Consequently it was premature, and the rights of the parties could not be passed upon by that, court. The referee therefore properly held that that suit was no bar to the present action.

The report of the referee, and the judgment thereon, must be set aside and a new trial granted; costs to abide event.

Roosevelt, Mitchell and Davies, Justices.]