Partridge v. Gildermeister

3 Abb. Ct. App. 461, 1 Keyes 93

• Court: New York Court of Appeals
• Decided: September 15, 1864
• Status: Published

Opinion

By the Court.

Denio, Ch. J.

The only real question in the case was, whether the purchase of the chairs was made by the defendant, or by Colquitt through the defendant as his agent. This question was fairly left to the jury, and their finding is that the purchase was by the defendant, and not by Colquitt.

The other branch of the defense was, that the sale of the chairs was part of an entire contract for a larger quantity, ,and that the plaintiffs had failed fully to perform on their part, and could not therefore recover for their partial performance. I do not think their claim was sustained by any view of the evidence. Upon the defendant’s testimony, the chairs which were not delivered on board the “Ellen Hood” were to be subsequently manufactured and delivered; they were contracted to be shipped by the defendant by the “ Martaro,” a vessel he was afterward to send to South America. In order to put the plaintiffs in the wrong, respecting the chairs to be manufactured, the defendant should have shown that he called on them and offered to deliver the notes of Machado, which the plaintiffs had agreed to receive. This was not done, and it does not even appear that the vessel in which they were to be sent ever sailed or was ever ready to sail. The plaintiffs did not agree to deliver the goods on the credit of any one but Machado. They were not bound to part with the chairs without at the same time receiving the notes, and they were never offered such notes nor required to deliver any more chairs. They have therefore committed no breach of the agreement on their part which should deprive them of payment for the chairs delivered.

If we should consider the contract for the chairs manufactured and delivered, and for those to he afterward made and delivered, as parts of an entire contract, still the plaintiffs were not to wait for the payment for those delivered until the others should he manufactured. They were to take the notes of Machado having six months to run, hut they were to have the notes when they delivered the chairs. They seem not to have immediately exacted the notes for the chairs delivered, hut they demanded them some time afterward; hut instead of delivering them, the defendant, the purchaser, repudiated' the contract and refused to deliver them. This was a breach of the contract on his part, which relieved the plaintiffs from the obligation to deliver any more property, and enabled them to sue immediately for that which they had delivered.

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The foregoing is the result of the evidence according to the testimony on the part of the defendant, and it is apparent from it that there was nothing to submit to the jury, except the question, whether the defendant or Colquitt was the contracting party. The judge should have instructed the jury that if they found against the defendant on that issue of fact they should give their verdict for the plaintiffs. By leaving further questions to the jury, he gave the defendant a chance for a verdict to which he was not entitled. Of this he could not of course complain.

The charge actually given was not excepted to. The further positions which he desired to have charged, were either covered by the charge, or were in themselves incorrect, or were immaterial. He desired to have the jury instructed that the plaintiffs could not recover unless the parties were agreed to waive the further delivery, as the defendant had released the plaintiffs from further performance. This leaves out of view the rescission of the contract, by the defendant refusing to perform on his part, which was conceded by the defendant’s evidence, and was the only waiver or release indicated by any part of the evidence. The judge had correctly explained the effect of such refusal to perform in the charge already given.

He then desired- to have the jury told, that the defendant’s denial of the contract when he was called upon for the notes of Machado, for the chairs already delivered, was not a waiver of the further performance by the plaintiffs. The judge had already instructed them correctly on that point when he told them that the claim of the defendant, that Colquitt was the purchaser, and his consequent refusal to give the notes, dispensed with a further performance on the part of the plaintiffs.

The last proposition of the request was irrelevant. The plaintiffs had claimed notes on the ground of Machado’s insolvency. That fact certainly would not relieve the defendant from giving their notes according to his agreement. He did refuse, and thus broke his agreement, and became bound to compensate the plaintiffs for the goods which had been delivered.

I think the appeal was wholly without merit, and that the judgment appealed from should be affirmed, with damages for the delay.

All the judges concurred, except H. E. Seldw, J., who was absent, and Mullís-, J., who dissented, on the ground that (he two requests, taken together, were sound and should have been given to the jury.

Judgment affirmed, with costs.

See Lee v. Decker, reported in this volume.