
    Elwood S. Hand, Pl’ff, v. The Belcher Mosaic Glass Co., Def’t.
    
      (City Court of New York, Trial Term,
    
    
      Filed March 29, 1890.)
    
    Contract—Pleading.
    In an action for breach of contract to pay a certain amount “ in trade ” the answer did not deny the allegation of-a refusal to deliver the goods, but alleged that defendant had always been ready and willing to furnish goods, but that plaintiff failed to leave any complete order. Held, that the averment of refusal to deliver was a material one which defendant was bound to deny, or be regarded as having admitted; that the allegation of readiness was not equivalent to performance in the face of the conceded fact of refusal, and that the answer created no issue.
    This action was brought to enforce the following contract, viz.:
    New York, February 2,1888.
    In consideration of an advertisement to occupy one page, the copy for which is attached hereto, in all copies of the book about to be published, historical, descriptive and pictorial, of the Arion Society’s new club house, we promise to pay to the order of E. S. Hand, agent, $220 in trade, on publication of book and the delivery to us of a specimen copy of same. The publishers will not be responsible for special agreements of any kind unless incorporated herein.
    $220.00-100 in trade.
    Belcher Mosaic Glass Co.,
    Felix Gottschalk,
    
      Secretary.
    
    It was alleged and not denied “ that there is now justly due and owing from the defendant, on account of and in accordance with said contract, goods of the value of $220; that plaintiff duly made demand for goods to be applied upon account of said order on the 11th day of January, 1890, hut defendant refused to deliver the same, or to deliver any goods whatsoever, on account of, or pursuant to, the provisions of said contract.”
    Upon the trial, defendant’s counsel claimed that his denial that there was any sum due plaintiff as damages was a denial of the foregoing allegation when considered in connection with the third paragraph of the answer alleging that defendant has always been ready and willing, and is now ready and willing, to furnish goods to plaintiff, but that plaintiff has failed to leave any complete order which could be carried out. The court treated the failure to deny the refusal to deliver as an admission of the plaintiff’s right to recover, and directed a verdict in his favor. The defendant moves for a new trial.
    
      0. Be Hart Brower, for pl’ff; O. M Oro well, for def’t.
   McAdam, Oh. J.

The stipulation for the payment of $220 in trade means that the defendant was to give the plaintiff goods to the amount stated, at market prices, and, upon refusal to deliver the goods, the defendant became liable to pay as damages $220. 2 Wait’s Act. & D., 455, and see Pinney v. Gleason, 5 Wend., 393 ; Rockwell v. Rockwell, 4 Hill, 164; Fletcher v. Derrickson, 3 Bosw., 181. The action being founded on the breach, the averment of refusal to deliver was a material allegation, which the defendant was bound to deny, or, in default, be regarded as having admitted the fact to be as charged. Code, § 522; Gould’s Pl., 141. Hot having denied the allegations of refusal, the defendant was not at liberty to prove anything inconsistent with the admission. Tell v. Beyer, 38 N. Y., 161; Fleischmann v. Stern, 90 id., 110. If there was but a qualified refusal to deliver on the part of the defendant it might conscientiously have denied the unqualified refusal alleged, or have pleaded facts showing that the refusal was not unqualified, but upon conditions which the law regarded as an excuse for non-compliance at the time. This was not done. The allegation that the defendant was “ready and willing ” to furnish goods to the plaintiff is unavailing, in view of the admission that it “ refused ” to deliver. The allegation in the answer of readiness to deliver is not equivalent to performance in the face of the conceded fact of refusal, which is conclusive evidence of the breach that gives the right of action. The answer created no issue, and the direction to find for the plaintiff was right. It follows that the motion for a new trial must be denied.  