Wooster v. Sandman

New York Court of Common Pleas

Wooster v. Sandman

8 Daly 218

DecidedFebruary 3, 1879

StatusPublished

This text of 8 Daly 218 (Wooster v. Sandman) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wooster v. Sandman, 8 Daly 218 (N.Y. Super. Ct. 1879).

Pincite

Opinion

Van Brunt, J.

This is another action upon contract dated May 1st, 1877, similar to the one mentioned in the opinion in the case of Wooster v. Tasker, decided herewith, the plaintiff claiming that the defendant did not return the guide within the ten days from May 1st, 1877, and the defendant answering that he did return this-guide. The justice gave judgment for the defendant, and from this judgment the plaintiff appealed.

The plaintiff claims that a delivery of the guide at his office in his absence was not a good delivery, and that he was not obliged to receive the guide prior to Maj 1st, 1878. The latter position is clearly untenable, because it is admitted by the olaintiff that the defendant informed him a [220]*220few days prior to the 1st of May that he did not intend to use the guide for another year, and that he told him if he returned the guide it would be all right. It is clear that if, pursuant to this direction the defendant returned the guide, that he is absolved from further liability upon this contract.

It is claimed that the defendant was bound to return the guide to the residence of the plaintiff and tender it there. This rule I do not think will be upheld at the present time, where a man has a known place of business. A tender at the place of business must be held to meet all the requirements of the law. But the question still remains, whether the leaving the guide ppon the desk of the plaintiff in his absence is a good tender back of the guide. I think it is not. It would seem that the defendant was bound to tender back the guide to the plaintiff at his place of business, or to some person acting for him, and if he is absent at least to wait a reasonable time for his return, in order to make a tender. In the case at bar, the defendant, not finding the plaintiff in his place of business, left the guide upon his desk. Such a tender does not seem to be sufficient, and our attention has been called to no principle under which it can be sustained.

The judgment must therefore be reversed.

Charles P. Daly, Ch. J., and Larremore, J., concurred.

Judgment reversed.

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Van Brunt, J.

This is another action upon contract dated May 1st, 1877, similar to the one mentioned in the opinion in the case of Wooster v. Tasker, decided herewith, the plaintiff claiming that the defendant did not return the guide within the ten days from May 1st, 1877, and the defendant answering that he did return this-guide. The justice gave judgment for the defendant, and from this judgment the plaintiff appealed.

The plaintiff claims that a delivery of the guide at his office in his absence was not a good delivery, and that he was not obliged to receive the guide prior to Maj 1st, 1878. The latter position is clearly untenable, because it is admitted by the olaintiff that the defendant informed him a [220]*220few days prior to the 1st of May that he did not intend to use the guide for another year, and that he told him if he returned the guide it would be all right. It is clear that if, pursuant to this direction the defendant returned the guide, that he is absolved from further liability upon this contract.

It is claimed that the defendant was bound to return the guide to the residence of the plaintiff and tender it there. This rule I do not think will be upheld at the present time, where a man has a known place of business. A tender at the place of business must be held to meet all the requirements of the law. But the question still remains, whether the leaving the guide ppon the desk of the plaintiff in his absence is a good tender back of the guide. I think it is not. It would seem that the defendant was bound to tender back the guide to the plaintiff at his place of business, or to some person acting for him, and if he is absent at least to wait a reasonable time for his return, in order to make a tender. In the case at bar, the defendant, not finding the plaintiff in his place of business, left the guide upon his desk. Such a tender does not seem to be sufficient, and our attention has been called to no principle under which it can be sustained.

The judgment must therefore be reversed.

Charles P. Daly, Ch. J., and Larremore, J., concurred.

Judgment reversed.

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Bluebook (online)

8 Daly 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wooster-v-sandman-nyctcompl-1879.