
    CHARLES S. GOODRICH, Plaintiff and Respondent v. DANIEL SWEENY, Defendant and Appellant.
    I. Contract por Sale and Delivery op Goods, Payment to be made on Delivery.
    1. Breach of.
    
    
      a. Vendor not liable for non-delivery unless vendee has properly tendered or offered performance on his part.
    2. Tender or offer of performance by vendee, what is not necessary, and what is.
    
    1. It is not necessary that he should produce and tender the money.
    But,
    2. If he does not produce the money, but merely offers to pay on delivery, stating his readiness and ability so to do, he must go farther and show facts confirming the truth of his statement.
    
      a. His mere statement that^he would pay or was able to pay is not of itself sufficient.
    3. Excuse for not tendering or offering performance by vendee, what does not furnish.
    
    
      a. A statement by the vendor before the expiration of the time for delivery to the vendee, in response to a request to hurry up the delivery, that he was unable to get the goods, does not furnish such excuse.
    
      b. A statement made by the vendor after the expiration of the time for delivery to the vendee, in answer to the demand of the vendee’s agent for a delivery, that he was unable to obtain the goods, at the same time expressing doubts as to the vendeds credit, does not furnish such excuse.
    H. Motion to dismiss Complaint.
    1. Where two grounds of dismissal are contained in the same sentence,
    . but disjunctively, one bad and the other good, a refusal to dismiss the complaint is error, for which a new trial will be granted. And this, although the good ground was stated in very general terms.
    1. A dismissal was moved for on the ground that the defendant waste pay cash, and there had been no evidence that had offered to pay cash or had offered to complete the contract in any way.
    Held, ,
    That although the want of proof of an offer to pay cash was not in itself sufficient to1 call for dismissal, yet under the latter clause, the appellant might urge that what the defendant did, did not amount in law to an ofier of performance, and therefore, there being no evidence of the production and tender of the money, that the complaint should have been dismissed.
    Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 29, 1873.
    Appeal from judgment.
    The plaintiff, through one Hazard, his agent, and the defendant, made a contract for the sale of three tons of carpet-rags at a certain price cash, deliverable between October 9th and the middle of December ; and by the contract, if the defendant had five tons of the rags, he was to “send them to be shipped” to the plaintiff. The plaintiff lived- in Rhode Island. The contract was made in this city, where the defendant lived and did business. The complaint demands damages for a breach by the defendant of the contract, in not delivering any of the property.
    On the trial, the plaintiff, to show that the defendant was in default on the contract, proved by Hazard that he, acting in behalf of Fisk, called at the defendant’s place of business previous to the middle of December, and was told by the defendant that he had not been able to get the carpets. Mr. Hazard said that Mr. Fisk had agreed for them, and needed and expected them, and suggested the shipment of what were on hand. Ho reason was at first given for not shipping the carpets but the defendant’s inability to get them. Subsequently, the defendant expressed doubts as to Mr. Fisk’s credit, and Mr. Hazard at once told him he would pay him on delivery, and would arrange with a good house in Hew York to pay him immediately on shipment, if Mr. Fisk or himself were not there. The witness said he was not able to state that what he had said occurred subsequently took place before the 2d of January, but that he was sure the offer of prompt payment as he had testified to it was made or reiterated on that 2d of January. He testified that on such last day he went to the defendant’s house and found him there, and told him that Mr. Fisk wanted the carpets; that the defendant again said he could not get them in sufficient quantity. The witness said that if the defendant would ship the lot which the witness had just seen at the defendant’s place of business, at the price agreed upon, Mr. Fisk would accept it in full of the contract, and the witness then offered to pay or arrange for the payment as before stated, but he could not prevail on the defendant to deliver or to ship. The offer was to pay whatever the bill of carpets should amount to under the contract. Ho money was presented at the time, but only the proffer of payment as before stated.
    When the plaintiff’s case closed, this was all the evidence that had been given to show that Mr. Fisk had done all that was required to give him an action for damages for defendant’s failure to deliver. The defendant made a motion for non-suit on two grounds, the second of which was: “That by the contract under which the plaintiff claimed, they were to pay the defendant cash for their carpets, and there had been no evidence to show they had offered to pay cash, or had offered to complete the contract in any way.”
    The motion was denied. Defendant then introduced evidence in support of his defence. Upon the close of the evidence, the case was submitted to the jury under a charge from the judge, and the jury rendered a verdict for the plaintiff.
    The defendant thereupon moved on the judge’s minutes for a new trial, which motion was denied.
    Thereafter judgment was entered upon the verdict in favor of plaintiff.
    Froin the judgment defendant appeals to the Ueneral Term.
    
      
      Thomas H. Hurley, attorney, and Albert Cardozo, of counsel for appellant, urged:
    I. What transpired between Hazard and Sweeney, taking the former’s version of it, was wholly immaterial.
    1. As to the interview previous to the middle of December.
    
      a. It does not appear how long previous to the middle of the month that interview occurred.
    
      b. It might have been shortly after the contract was made and when it could not be expected that the defendant would have the goods.
    
      c. He did not say he would not complete the contract, but only that he had not the goods then. That was no refusal and no breach.
    
      d. If he had then declared he would not be able to perform when the contract required, it would not be a breach (McDonald v. Williams, 1 Hilt. 365).
    
      2. The interview of January 2d was long after the contract had expired.
    II. To enable the plaintiff to recover, it was incumbent upon him to show that Fisk, at the time provided in the contract for its maturity, viz., the middle of December, was ready and willing to actiept and able to pay for the goods (Coonley v. Anderson, 1 Hill, 519 ; Vail v. Rice, 5 N. Y. 155; Bronson v. Wiman, 8 N. Y. 182).
    
      a. The evidence of Hazard, the only testimony even remotely bearing upon the subject, fails to establish this ; and at all events it relates to a period other than that fixed by the contract.
    
      b. There is no evidence of Fisk’s pecuniary condition.
    
      c. Ho proof that he did anything to put himself in funds to pay for these goods, or that he had the means to do so.
    
      d. The only proof on .that point is Hazard’s evidence, that he approved of Hazard’s “ offer of prompt payment and was ready to provide funds for the same.”
    
      How could Hazard swear to the conclusion that Fisk was ready to provide funds ? But at any rate, Hazard’s-offer, to which his testimony relates, was not made until January 2d, long after the contract had expired.
    
      e. Fisk in his complaint does not pretend that he was ready, willing, or ahle to receive and pay for the goods at the time designated in the contract.
    
      E. Terry, attorney, and of counsel for respondent, urged:
    (1.) When the contract is to deliver at a particular place, and "by a given day, specifying the price, "but no time of payment, the vendor must aver and prove that he was ready and willing to accept and pay (Ib. Vail v. Rice, 5 N. Y. 1 Seld. 155). Hazard said “ he would arrange with a good house in Hew York immediately on-shipment,” if Fisk or he was not there.
    This means whenever Sweeny was ready Fisk would pay, and Sweeny made no objection.
    (2.) The plaintiff could have done nothing fairer or fuller under the circumstances than he did in carrying-out the contract.
    (3.) “When the buyer sues for the seller’s breach of contract to deliver goods at a particular time and place, he must prove that he was ready and willing to pay for the goods, "but need not prove a tender or demand” (Vail v. Rice, 5 N. Y. 1 Seld. 155 ; Leaird v. Smith, 44 N. Y. 618).
    (4.) In White v. Demilt, (2 Hall Reps. 413), Oakley, J., says: “The actual making and tendering of the notes would have "been an idle ceremony when the defendant refused to deliver the goods. The payment, in the natural order of things, was to follow the delivery, and although it was to be simultaneous, it was not to "be completed until the goods were actually received ” (see also Dana v. Feidler, 1 E. D. Smith, 463).
    Affirmed on other points (12 N. Y. 2 Ker. 40).
   By the Court.—Sedgwick, J.

The contract contemplated that the delivery of the goods and the payment of the purchase-money were to be simultaneous. The purchaser was, in making demand of performance, to be in the situation required by law under such circumstances. It was not necessary that he should produce the money in case of the seller’s refusal to deliver. It was necessary, at the least, that sufficient evidence should have been given, that at the time of demand of performance he then had such means of procuring money as to make it a question for the jury as to his then being able to make the proper payment. The statement of the buyer that he would pay, or was able to pay, is not of itself sufficient for such purpose. Other facts must be shown, to confirm the truth of the statement ; e. g. in Bronson v. Winans, it was shown that the buyer had promptly met all demands on him, and had facilities for raising the required amount of money (Coonley v. Anderson, 1 Hill, 519 ; Bronson v. Winans, 8 N. Y. R. 188 ; Wheeler v. Garcia, 40 N. Y. R. 586 ; Currie v. White, 45 N. Y. R. 822 ; Delavan v. Duncan, 49 N. Y R. 487).

As the defendant had until the middle of December to perform the contract, what took place before that time is immaterial to the point. On the 2d of January, Mr. Fisk, through his agent, told the defendant that he would pay on delivery, and would arrange with a good house to pay him immediately on shipment, if Mr. Fiske , or his agent were not there; or, according to another version, the agent offered to pay, or arrange for the payment as before stated. Assuming that this was in due time under the contract, and that a demand of performance was made, still there was no testimony given as to the ability of Mr. Fisk or his agent to make the payment, or to raise sufficient funds, or even to arrange with a good house for the payment.

I think this was sufficiently pointed at in the ground which the motion for non-suit stated, that there was no evidence to show that the buyer had offered to complete the contract in any way. The substance of that was that he had not in any way done or offered to do what under the contract it was necessary for him to do or offer, to enable plaintiff to maintain the action. I am of opinion that the learned judge overlooked the correctness of the second ground, because of the prominence of the first and incorrect ground that it was necessary to offer to pay cash, which was not necessary, there having been some evidence of a refusal to perform.

For this reason the judgment is reversed, and new trial ordered, with costs to appellant to abide event.

Monell and Curtis, JJ., concurred.  