Opinion
Argued October 15, 1883
Decided October 26, 1883
Albert B. Boardman for appellants. E.T. Wood for respondents.
The most material questions in this case are whether it was the duty of the vendee to inform the vendor of the name of the vessel and at what place the vendee would be ready to receive the alcohol, which the vendor had contracted to deliver, and whether it was necessary for the vendee to tender the price of the alcohol to the vendor before delivery.
By the contract between the parties the alcohol was to be delivered alongside of the buyer's vessel at the rate of five hundred barrels per month from November to April inclusive, sellers' option, cash on delivery free of expense to buyers, provided name of vessel and number of pier are made known before arrival of the goods. No notice was given by the plaintiffs in accordance with the provisions of the contract, nor was any tender made by them to the defendants of the price of the alcohol. The appellants offered upon the trial to show a waiver by the defendants which would have obviated this objection. The offer made was to the effect that a witness on behalf of the plaintiffs called upon the defendants at their office on the 31st day of December, 1879, and had an interview with one of the defendants; that he said to him he appeared there at the request of Mr. Woolner on behalf of the plaintiffs; that he wanted to know if it was necessary for these people to do any thing by way of tender or performance of their contract to keep their contract alive, or to tender the money, or to do any thing of that kind, and that Mr. Hill, one of the defendants, said to him that it was not.
It also appears, from the evidence, that on the 15th day of December, 1879, the defendants made a general assignment for the benefit of creditors. It was also proved that on the 31st day of December, 1879, the plaintiffs sent a letter by messenger to the defendants, demanding the delivery of the five hundred barrels of alcohol due that month, and offering to pay the purchase-price of the same on delivery.
We think it was sufficient that the plaintiffs were ready and willing to pay the contract-price of the alcohol when delivered, and no tender was necessary. This rule is well settled in this State. ( Coonley v. Anderson, 1 Hill, 519; Vail v. Rice, 5 N.Y. 155; Bronson v. Wiman, 8 id. 188; Isaacs v. New York Plaster Works, 67 id. 124.)
In this case no tender was required for the additional reason that the defendants had, by their voluntary assignment of the 15th of December, placed it out of their power to perform. The assignee had no power, as such, under the circumstances to accept the tender or fulfill the contract, as the defendants had by the assignment disposed of their interest in the same, and, as there was no one to whom the tender could properly have been made, the plaintiffs were relieved from making any offer of performance by a tender of the money.
The rule is well established that the party who disables himself from performing his contract before default by the other party waives the performance of acts by the latter, which, except for such disability, he would be bound to perform, as conditions precedent to recovery on the contract. ( Hawley v. Keeler, 53 N.Y. 114.)
Having this principle in view the defendants, by the assignment, had become disabled from performing the contract and waived the conditions which might have been insisted upon had they been in a condition to perform themselves.
The formal demand of the goods by the plaintiffs on the 31st of December, and their offer to pay for the same on delivery, was strong evidence of the plaintiffs' readiness to perform.
The evidence offered by the appellants to show that the defendants had waived tender and any offer of performance from the plaintiffs, we think should have been received. ( Holmes v. Holmes, 9 N.Y. 525; Smith v. Poillon, 87 id. 594; 41 Am.Rep. 402.) The evidence was admissible for the purpose of showing that the plaintiffs were not bound to tender the money upon the contract for the alcohol, or to designate the place of delivery. Although the complaint averred a readiness to perform on the part of the plaintiffs, yet if the evidence shows that the plaintiffs were ready and willing to perform at the appointed time and place, and the defendants did nothing, this is enough to sustain the averment without proving either a demand or a tender of the money. ( Coonley v. Anderson, 1 Hill, 519, supra.) It cannot, therefore, be said that the evidence would have raised a new issue.
The point was not taken on the trial that the plaintiffs were not co-partners, and, on the ground stated, the judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.