Hendrickson v. Callan

Appellate Division of the Supreme Court of New York

Hendrickson v. Callan

147 A.D. 480, 131 N.Y.S. 839, 1911 N.Y. App. Div. LEXIS 2908

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1911

StatusPublished

This text of 147 A.D. 480 (Hendrickson v. Callan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hendrickson v. Callan, 147 A.D. 480, 131 N.Y.S. 839, 1911 N.Y. App. Div. LEXIS 2908 (N.Y. Ct. App. 1911).

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Opinion

Sewell, J.:

It is not claimed that the agreement in question is void for want of mutuality, for fraud, mistake or want of consideration, and it is undisputed that the defendant actually received _ the consideration for his promise at the time of making- it. The only defense relied upon by the defendant to escape from the-plain obligation assumed by him under the agreement is that no tender was made by the plaintiff of the bonds and stock within one year from January 1, 1909. It is quite obvious, we think, that the cases cited by the defendant in support of this contention are distinguishable from this case. They are cases in which the promises were mutual and concurrent, where two parties agreed to do each a certain thing on the same day, and the thing to be done by one was the consideration for that which was to be done by the other, and the court held that, because concurrent action was required, neither party could sue at law" until he had put the other in default by a tender of performance on his part before the expiration of the. contract. (Rutty v. Con[482]*482solidated F. J. Co., 52 Hun, 492; Taylor v. Blair, 59 id. 347; Lester v. Jewett, 11 N. Y. 453; Page v. Shainwald, 169 id. 246.)

The contract in the present case did not require contemporaneous performance. The promise of the defendant was in consideration of an act done by the plaintiff at the time of making the promise and in return therefor. There was no provision for simultaneous acts or for the delivery of the bonds and stock on a particular day. The subscription by the plaintiff, which created a legal liability on his part to pay for the bonds so to be taken, was all that he was bound to do under the agreement. There was then left only the outstanding liability of defendant, which is to be construed as an express promise to take the bonds and stock and to pay for them within the time mentioned.

Under such circumstances it is clear that the obligation continued after the expiration of the year; that an offer or tender of the bonds and stocks within the year was not a condition precedent, according to the terms of the agreement upon which the right of the plaintiff to recover depends; and that it was enough to show that he put the defendant in default by tendering to him the bonds and stock before the commencement of the action.

We are of the opinion, therefore, that the judgment must be reversed and a new trial granted, with costs to appellant to abide event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Sewell, J.:

It is not claimed that the agreement in question is void for want of mutuality, for fraud, mistake or want of consideration, and it is undisputed that the defendant actually received _ the consideration for his promise at the time of making- it. The only defense relied upon by the defendant to escape from the-plain obligation assumed by him under the agreement is that no tender was made by the plaintiff of the bonds and stock within one year from January 1, 1909. It is quite obvious, we think, that the cases cited by the defendant in support of this contention are distinguishable from this case. They are cases in which the promises were mutual and concurrent, where two parties agreed to do each a certain thing on the same day, and the thing to be done by one was the consideration for that which was to be done by the other, and the court held that, because concurrent action was required, neither party could sue at law" until he had put the other in default by a tender of performance on his part before the expiration of the. contract. (Rutty v. Con[482]*482solidated F. J. Co., 52 Hun, 492; Taylor v. Blair, 59 id. 347; Lester v. Jewett, 11 N. Y. 453; Page v. Shainwald, 169 id. 246.)

The contract in the present case did not require contemporaneous performance. The promise of the defendant was in consideration of an act done by the plaintiff at the time of making the promise and in return therefor. There was no provision for simultaneous acts or for the delivery of the bonds and stock on a particular day. The subscription by the plaintiff, which created a legal liability on his part to pay for the bonds so to be taken, was all that he was bound to do under the agreement. There was then left only the outstanding liability of defendant, which is to be construed as an express promise to take the bonds and stock and to pay for them within the time mentioned.

Under such circumstances it is clear that the obligation continued after the expiration of the year; that an offer or tender of the bonds and stocks within the year was not a condition precedent, according to the terms of the agreement upon which the right of the plaintiff to recover depends; and that it was enough to show that he put the defendant in default by tendering to him the bonds and stock before the commencement of the action.

We are of the opinion, therefore, that the judgment must be reversed and a new trial granted, with costs to appellant to abide event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

147 A.D. 480, 131 N.Y.S. 839, 1911 N.Y. App. Div. LEXIS 2908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendrickson-v-callan-nyappdiv-1911.

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