Keeney v. Mason

49 Barb. 254, 1867 N.Y. App. Div. LEXIS 98

• Court: New York Supreme Court
• Decided: March 4, 1867
• Status: Published

Opinion

By the Court, E. Darwin Smith, J.

The referee, I think, disposed of this case correctly. The property in the lumber, notwithstanding its delivery at the Tioga railroad station, remained the property of the plaintiff. It was not delivered to the defendant, on or before the 6th of September. It was simply transported to, and deposited at the place of delivery ; but it was not measured or inspected, and the defendant was not there to receive it and to make payment, and the title to the property was not to vest until payment. By the terms of the contract of the 24th of February, the defendant was to pay for the lumber upon delivery. When, therefore, the parties -met and examined the lumber, on the 6th of September, six or seven weeks after the property had been so deposited at the said railroad station, the plaintiff had the right to take the ground that by reason of the defendant’s delay in receiving and paying for the lumber, he would not deliver it upon the contract. This he did, and the parties then, as the referee finds, and, I think, properly, entered into another contract for the sale of said lumber, whereby the defendant agreed to pay, and the plaintiff agreed to receive an enhanced price for the lumber previously contracted for, and for the purchase and sale of other lumber. This new contract was perfectly valid. It was not a parol alteration of the former written contract, but it was in substance and effect a new contract in lieu of the former one which the plaintiff refused to perform. Such new contract can be upheld, within the cases of Meech v. The City of Buffalo, (29 N. Y. Rep. 218 ;) Munroe v. Perkins, (9 Pick. 298 ;) Lattimore v. Harsen, (14 John. 330 ;) and Hart v. Lauman, (29 Barb. 410.)

[Monroe General Term, March 4, 1867.

Besides, the new contract was executed. The plaintiff delivered the lumber upon it, and the defendant paid thereupon $800, October 4, thereafter, and promised to pay the balance. After this affirmation of the new contract, it was too late for the defendant to recede from it, or object to it. If the referee was correct in finding that the parties made a new contract, and that the lumber was delivered and accepted upon this new contract, he clearly was not bound to find, as requested, that the said lumber was delivered under the former contract; or that any new consideration for the promise to pay the additional price for such lumber was necessary ; or that said new agreement was without consideration and void ; and the exceptions for his refusal so to find and decide are untenable.

Hone of the exceptions taken in the case, I think, are well taken.

The judgment should be affirmed.

Judgment affirmed.

Welles, E. D. Smith and Johnson, Justices.]