Kester v. Reynolds

13 N.Y. Sup. Ct. 626

• Court: New York Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Smith, J.:

The nonsuit, we think, was erroneously granted. No time was fixed for the delivery of the potatoes, and the plaintiffs could not have been expected to be at Livonia station at any particular time to receive and pay for them. The parties, I think, did not contemplate payment at that place. The defendant was to put the potatoes into the plaintiffs’ sacks and ship them by the railroad to Buffalo, where the plaintiffs resided. In the letter of defendant, dated the second of May, the defendant wrote the plaintiffs that “he had the potatoes bought, and would ship them as soon as brought in.” This implies that he was to ship or deliver them on board the cars for the plaintiffs, to be transported to Buffalo without previous payment. Nothing was said about payment, and it is perfectly clear, I think, that neither party expected payment to be made, until the potatoes were received at Buffalo.

Delivery to the carrier selected by the plaintiffs was a delivery to them, and that was necessarily to precede the payment. Payment and delivery were not to be contemporaneous acts. The defendant had had, previously, dealings with the plaintiffs, and proposed to send them the potatoes without exacting prepayment, trusting to their credit and responsibility. Doubtless, he would have had the right to stop the potatoes in transitu, after delivery on board the cars, upon the insolvency of the vendees, or exact payment at Buffalo before they reduced them to actual possession. But he was bound to do the first act. He was bound to put the potatoes into plaintiffs’ sacks, and deliver them to the carrier for shipment to them at Buffalo. The sending back their sacks empty, coupled with proof of the sale and delivery of the potatoes purchased and put into them, to Comstock, was a breach of the contract on the defendant’s part, and a refusal to fulfill the same, and in any view excused the plaintiffs from the necessity, if any such ever existed, of demanding the potatoes and tendering the price. It was error, also, to refuse to allow the plaintiffs to show the course of dealing between them and the defendant. Extrinsic facts of this kind are always admissible to aid in the interpretation of contracts, and what is rationally and naturally inferable, or to be implied as to the understanding and intent of the parties at the time of the making of the contract, should be deemed part of it. The nonsuit should be set aside, and a new trial granted upon the usual terms.

Gilbert, J., concurs. Mullin, P. J., dissents in a written opinion.

New trial granted, with costs to abide event.