McDonald v. Williams

1 Hilt. 365

• Court: New York Court of Common Pleas
• Decided: June 15, 1857
• Status: Published

Opinion

Ingraham, First Judge. —

Tbe contract alleged to bave been broken was for tbe sale of a horse, to be delivered in tbe afternoon, at 5, P. M. The defendant was at tbe place of delivery at tbe bour, ready to deliver tbe borse, and tbe plaintiff was not there to accept it. Tbe previous declaration of tbe defendant to a third person, that be would not be able to deliver at tbe time fixed, was not a breach of tbe contract, and, if it was entitled to any weight, could only be of use in relieving tbe plaintiff from liability for not being ready to receive and pay for tbe borse at tbe bour agreed on.

Under these circumstances, no breach of tbe contract was made out until a tender bad been made, either by tbe defendant, of tbe borse, to fulfil tbe contract on bis part, or by tbe plaintiff, of tbe money, to entitle him to damages for tbe non-delivery. Neither party, without doing the acts required, could maintain an action for breach of tbe contract.

Judgment reversed. *