Kemble v. Wallis & Newcomb

10 Wend. 374

Opinion

By the Court,

Sutherland, J.

The reasonable, and I think the true construction of the contract, as set forth in this count, is, that the defendants would be responsible for the expense of printing, to the extent of 1000 copies of the work mentioned therein. The responsibility of the surety was limited to that amount; but the contract did not bind the plaintiff to print 1000 copies at all events, whether they were required or not, so as to make the printing of that number a condition precedent to his right to recover any thing. The direction of Newcomb, therefore, to the plaintiff, to print only 800 copies was not a variation of the contract, but a modification, contemplated and provided for by the contract itself.

The delivery of 800 copies to Newcomb three months before the commencement of the suit is sufficiently averred. An offer to deliver, and a refusal by Newcomb to receive them more than three months before the commencement of the suit, gave a right of action on the contract; and although Newcomb did subsequently receive them, the right of action accrued at the time of the tender and refusal, and not at the time of the actual acceptance. There is no legal objection in a case like this, to stating the particular facts and circumstances of the case, instead of averring an absolute delivery, to which, in judgment of law, those facts are equivalent.

Notice to Wallis of' the delivery of the books, and of the neglect or refusal of Newcornb to pay, was not necessary; it was not provided for in the contract. The undertaking was absolute, to pay, if Newcomb did not, in three months after delivery. 8 Wendell, 421, 2. 7 id. 290. 5 id. 504. 1 Chitty's Pl. 322, 3, 8 Wendell, 452. 11 Mod. 48. 2 Salk. 457.

Judgment for plaintiff on demurrer, with leave to defendant to amend.