M'Nish v. Coon

13 Wend. 26

• Court: New York Supreme Court
• Decided: October 15, 1834
• Status: Published

Opinion

By the Court,

Sutherland, J.

The sale and removal of the mill in the fore part of October is a decisive fact against the defendant. The plaintiff had a right to wait as long as he pleased before he demanded the sawing, so that time enough was left to the defendant to perform it before the expiration of the lease, which was the sixth day of November. There is nothing in the case to show that a month was not more than sufficient for that purpose; and in the fore part of October, before the plaintiff was obliged to make the demand, the dexo v fendant had disabled himself from performing, by the sale and removal of the mill. Upon this ground the plaintiff was clearly excused from making a demand; it would have been an act entirely nugatory; the defendant had not the physical power of performing; there was no mill at the place where the sawing- was to be done. The case of Lovett v. Cornwell & Wing, 6 Wendell, 369, is in point. The court below should have held that the plaintiff had excused the demand, and was entitled to recover.

Judgment reversed; venire de novo.