
    Alexis E. McIlvaine et al. plaintiffs, vs. John Egerton, defendant.
    1. On a contract for the sale of goods deliverable át a future day, at the buyer’s option, the vendor, In an action for the price, is not required to prove that he was the owner, or in possession of, the particular goods, at the time of making the contract.
    2. Such a contract is not “per se ” invalid on the mere ground that the vendor was not in possession of the goods at the time of making the contract.
    3. A contract of that description is not necessarily within the statute of betting and gaming (1 R. S. 662,) or Void at common law as being against public policy.
    4. A claim of the defendant not arising out of the contract or transaction set forth in the complaint, or connected with the subject of the action, but arising upon another wholly independent contract made with the plaintiff’s assignor, is not the subject of a counter-claim.
    
    5. The Code does not allow breaches of contracts with other parties to be set up as a defense by way of counter-claim. Set offs, under the statute, are alone applicable for that purpose; and a claim against the plaintiff’s assignor, if within the provisions of that statute, may be allowed as a set-off.
    (Before Barbour, Monell. and Gabvin, JJ.)
    Heard March 17, 1864;
    decided July 2, 1864.
    This action was brought to recover upon a contract for the, sale of a quantity of pork. The complaint alleged that in May, 1862, one Leaycraft agreed to sell and deliver to the defendants, and that the defendants agreed to purchase and receive, one thousand barrels of mess pork. That the pork should be delivered at the buyer’s option, during the month of July, 1862, the buyer giving five days written notice of delivery, and that an accepted order on any of the regular inspection yards, should constitute a delivery. On the 9th of June, 1862, Leaycraft assigned the agreement to the plaintiffs, of which the defendant had notice. That the defendant did not give any notice to deliver the pork to Leaycraft, or to the plaintiffs, at any time. On the 26th of July, 1862, the plaintiffs gave the defendant notice of their readiness to deliver the pork, and on or about the last day of July tendered the pork to the defendant and demanded payment, which was refused. The plaintiffs demanded judgment for their damages, namely, the difference between the market and contract price of said pork.
    The defendant by his answer put in issue the material allegations in the complaint, and' then alleged, as a separate defense, by way of “ counter claim,” that in January, 1862, he (the defendant) made an agreement with Perdue & Ward to buy and receive from them one thousand barrels of mess pork, deliverable during the month of June at the defendant’s option, he to give five days written notice of his intention to demand delivery. That while such contract was in existence, the defendant sold the same to said Leaycraft, and authorized said P. & W. to deliver the pork to him, according to the terms of the agreement. That thereupon said Leaycraft undertook and agreed with the defendant to perform said contract on said defendant’s part, and to receive said pork, and to pay said P. & W. for the same, according to the terms of said agreement. That Leaycraft did not give the notice required by said agreement, or demand a delivery of said pork. That on the 13th of June, P. & W. tendered the pork to the defendant, who thereupon with them tendered the same to Leaycraft and demanded payment, which was refused. That by reason of such refusal the defendant was obliged to receive from P. & W. said pork, and settle with them therefor at the contract price. That the defendant was thereby damaged to the extent of the difference between the market and contract price.
    The action was tried by Justice G-abvin and a jury.
    The defendant moved to dismiss the complaint, on the following grounds:
    
      First. That the plaintiffs had not shown a tender of the pork to the defendant. Second. That the plaintiffs had not shown that at the time the contract was made they owned the pork; and Third. That the arrangement was a mere wager upon the chance of a falling market.
    The motion was denied, and the defendant excepted.
    An offer was made by the defendant to prove the facts constituting his “ counter-claim,” which was overruled* and he excepted. Under the direction of the court, the plaintiffs had a verdict.
    Judgment was suspended, and the exceptions ordered to be heard at the general term.
    
      John E. Parsons, for the plaintiffs.
    
      Cummins, Alexander & Green, for the defendants.
   By the Court,

Monell, J.

The provision in the contract with Leaycraft, that an accepted order on any of the regular inspection yards should constitute a delivery, rendered a tender of the pork unnecessary, and therefore the plaintiffs’ order upon Amelung & Co., accepted by them, was a literal and sufficient compliance with the contract.

The agreement was to deliver at a future day. On the day of the tender the plaintiffs had the pork ready for delivery.

The objection that at the time of making the contract the vendor was not the owner nor in possession of the merchandise, and that it was a mere wager, does not seem to me to have any force. Indeed there was no evidence to support the objection. The plaintiffs were not required to furnish any proof on that subject, (Dykers v. Townsend, 24 N. Y. Rep. 57,) and the defendants did not prove any thing. But, besides, a contract in May to deliver in July a quantity of mess pork was not invalidated on the mere ground that the seller was not in possession of the goods at the time of making the contract. Such a contract was not within the meaning of the statute, (1 R. S. 662,) nor was it at common law as being against public policy. (Lansing v. Lansing, 8 John. 454.) Hot being opposed by such considerations, it was valid and could be enforced. (Story Contracts, §566 Chitty on Cont. p. 433. Burns v. Riker, 4 John. 426.)

The defense set up by way of counter-claim was properly excluded. It did not arise oút of the contract or transaction stated in the complaint, nor was it connected with the subject of the action. It arose upon another and wholly independent contract made with Leaycraft, the plaintiffs’ assignor. The Code does not allow breaches of contracts with other parties, to be set up as a defense by way of counter-claim. The statute of sets-off is retained for that purpose, and a claim against the assignor, if within the limit of that statute, may be allowed as a set-off. But in this case the subject of the counter-claim is not within the statute of set-off. (2 R. S. 362.)

The defendants may have a cause of action against Leaycraft for damages for non-fulfillment of the contract with Perdue & Ward ; but they have no claim against the plaintiffs arising thereupon. They did not take the contract from Leaycraft burthened with any equities or defenses of that character ; and, therefore, such equities or defenses are not available as a defense to the plaintiffs’ action.

The cases are numerous and uniform. (Dyllaye v. Niles, 4 Abb. 253. Ferreira v. Depew, Id. 131. Davidson v. Remmington, 12 How. Pr. Rep. 310. Van de Sande v. Hall, 13 id. 458. Spencer v. Babcock, 22 Barb. 327. Wolfe v. Chas. E. H., 13 How. Pr. Rep. 84. Vassear v. Livingston, 13 N. Y. Rep. 248.)

I am of opinion that none of the exceptions have been sustained, and, therefore, that the plaintiffs should have judgment upon the verdict.

Ordered accordingly.  