Chatterton v. Fisk

1 Abb. N. Cas. 88

• Court: New York Supreme Court
• Decided: July 1, 1876
• Status: Published

Opinion

Lawrence, J.

The demurrer is well taken, for these reasons:—1. The complaint does not aver that the plaintiff tendered or offered performance of the contract on their part to the defendants or to their alleged agent, Speyers.

2. The averment in the complaint that the plaintiffs were ready, &c., is not sufficient (Dunham Mann, 8 N. Y. 508; Parker v. Parmele, 20 Johns. 130; Lester v. Jewett, 11 N. Y. 453).

3. The allegation as to the inability to effect clearances through the Gold Exchange Bank, in consequence of the enormous business of the defendants with the bank on the day in question, does not excuse an offer of performance on plaintiff’s part, nor does the fact that the bank was unable to do the business tendered to it, put the defendants in default.

4. The notification from Speyers as to Ms inability to carry out the contract, does not appear to me to relieve the plaintiffs from offering to perform (cases supra).

Judgment for defendants on demurrer, with leave to plaintiff to amend on payment of costs.