
    Lewis Shields, Resp’t, v. Theodore F. H. Meyer, App’lt.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed May, 1888')
    
    Contracts—Performance—When a condition precedent to payment.
    The defendant by a written order requested the plaintiff to allow a third party to have merchandise to a certain value. The plaintiff on receipt of the order did not comply with its direction but applied the amount on an old account which he had against the party in whose favor it was drawn. Held, that the defendant could not be held liable for the amount of the order without compliance with its direction on the part of the plaintiff.
    Appeal from a judgment of the Warren county court, affirming a judgment rendered in a justice’s court.
    
      H. Prior King, for resp’t; S. & L. M. Brown, for app’lt.
   Learned, P. J.

We think that this judgment cannot be sustained.

The order signed by defendant requested plaintiff to let Granger have merchandise as desired to a certain value. The plaintiff did not let Granger have merchandise on receipt of the order, but on the contrary applied the amount of the order on an old account which he had against Granger. He therefore did not do what the defendant requested; and hence the defendant is under no obligation to pay. The defendant can only be held liable on his agreement: that was to pay for merchandise which plaintiff should let Granger have. It is of no consequence to this case whether defendant owed or did not owe Granger. If plaintiff had complied with the order he could have recovered.

As he did not, he cannot.

Judgment reversed, with costs.

Landon and Ingalls, JJ., concur.  