
    Marvin S. Robinson, Resp’t, v. Andrew F. Frank, App’lt.
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    Contract—Breach of—Refusal to perform—Demand unnecessary.
    The plaintiff’s assignor and defendant entered into a contract by the terms of which defendant agreed to furnish said assignor certain machines, and in default to pay a fixed sum of money for each machine he failed to furnish less than the agreed number. The contract provided that if defendant failed to deliver the machines a certain number of days after service of a notice as to where they were to be delivered, then the money should be due. After delivery of part of the machines defendant refused to manufacture and deliver any more machines, and plaintiff brought suit. Held, that the refusal of defendant being absolute and total, it was unnecessary for the plaintiff to make any further demand or to serve any other notice, and that plaintiff was entitled to recover.
    Appeal from a judgment of the general term of the superior court of Buffalo, affirming a judgment entered upon the decision of the court after a trial before the court without a jury.
    The defendant was indebted to one Giles in the sum of $6,000, and entered into a contract with him, by which; in Eayment of said debt, he agreed to manufacture and dever to him 1,500 drag sawing machines, the said machines to be packed in a certain manner and delivered as Giles should direct, The contract also provided that if defendant should fail to deliver the machines within thirty days after receiving such notice from defendant he should pay four dollars for each machine not delivered. This contract was assigned to plaintiff, and after defendant had delivered 100 machines as directed, the defendant was sued by a certain company, the object of the suit being to restrain him from manufacturing the machines. He thereupon ceased to manufacture any more machines, although Giles offered to defend the suit and pay all costs. Afterward plaintiff notified defendant that he was in default and demanded $5,600 under the contract. On defendant’s failure to pay this suit was brought.
    
      Marshall, Clinton & Wilson, for resp’t; Rogers, Locke & Milburn, for app’lt.
   Per Curiam.

Very likely the defendant is right in his construction of the terms of the contract, and that the notices were required in conformity with his views of its requirements.

We think, however, there was sufficient evidence upon which to base the finding of the trial judge that the defendant ceased and refused to manufacture the machines under the contract, and so notified the plaintiff or his agent. The refusal was absolute and total, and it is not pretended that defendant ever withdrew. It was ample excuse and justification to the plaintiff for his omission to make any further demands or to serve any other notices than the last one, which it is admitted or proved that he did serve. Shaw v. Republic Life Ins. Co., 69 N. Y., 286.

There are no merits in the appeal and the judgment should be affirmed, with costs.

All concur.  