
    John W. Howard et al., Respondents, v. The American Manufacturing Co., Appellant.
    New York Superior Court—General Term,
    December, 1895.)
    1. ¡Contract—-Refusalof performance by one party to a depend.-' . ENT CONTRACT DISPENSES WITH PERFORMANCE BY THE OTHER.
    When the obligation of "one'party -presupposes-the,doing of .some , act by the other,, the-neglect or refusal to perform such-act dispenses ‘ with the obligation of performance. -
    2. Same.' . ■ '
    ■ Plaintiffs contracted to- put up certain air' propellers' in defendant’s factory, the power to run them to be furnished by defendant. The propellers were put up, as agreed, hut the power was not sufficient - to drive them. Upon discovery of this fact .a .proposition was made to attach them-to other shafting, each party to hear half the expense of the change, to which plaintiffs agreed, hut defendant declined. ■Held, that the contract was a dependent one; that plaintiffs having performed on their-part were entitled to recover the purchase price, and that defendant could' not, by.refusing to furnish the necessary power, absolve itself from 'the'.obligation to pay-on-' the ground- that-the machines did not do the. work. ... : '.-
    Appeal from judgment of the Trial Term.Action, to recover the purchase price of three Blackman air propellers erected by plaintiffs upon defendant’s premises.
    The following is the opinion at Trial Term :
    McAdam, J. The' plaintiffs were to put up three Blackman air propellers in' defendant’s factory, guaranteed tó prevent accumulations of smoke in the'tempering room. The defendant was to furnish the power required to run the machines. The evidence shows .that this power ivas to he obtained by attaching, the propellers, to the line of shafting in the “ tempering room-,” They were so affixed, but the power' proved insufficient to drive them. The defendant undertook to remedy the defect by strengthening the shafting, etc., hut -this-did not cure the difficulty. Mr. Wolff, the defendant’s consulting engineer, then suggested that the power be taken from a-shaft' in .the main building, and asked if the plaintiffs would bear half of $100, the expense of the change. The plaintiffs agreed to this, but the defendant declined. The action is to recover $487, the agreed price of the propellers, and the defense nonperformance, in that the machines did not do their work. The contract was a dependent one, containing concurT rent obligations, and if the plaintiffs performed their part a recovery may, nevertheless, be had. -3 Am. & Eng. Ency. of Law, 910. This upon the principle that when the obligation by one party presupposes the doing of some act on the part of the other party thereto, the neglect or refusal to perform such act dispenses with the obligation of performance by the other. Mansfield v. R. R. Co., 102 N. Y. 205-211; and see People ex rel. New York & H. R. R. Co. v. Comrs. of Taxes, 101 id. 327 ; Gallagher v. Nichols, 60 id. 438 ; Niblo v. Binsse, 3 Abb. Ct. App. Dec. 375; Bryon v. Mayor, 7 N. Y. St. Repr. 17. The machines were to be operated by steam, and the defendant could not, by refusing to furnish the necessary power, absolve itself "from the obligation to pay. There can be no doubt about -the fact that the plaintiffs connected the machines with power at the proper place. The connection was made at the place designated in the letter which forms the contract and. at the spot agreed upon. Even if the contract had been ambiguous on this point, the law would hold the defendant to that meaning which it knew the other party supposed the words to bear. 2 Pars, on Cont. (6th ed.) 500. The defendant never intimated by word or act that the point where the connection was made was not the agreed place, and never suggested that it should have been made elsewhere. The defendant ought to have accepted the offer to divide the expense of correcting the error in selection, as the plaintiffs were not responsible for the mistake. The defendant’s consulting engineer certified that the work, in point of construction, was well done, and this is all that could be required under the circumstances. The plaintiffs are entitled to judgment for the amount claimed (less the $50), with interest, aggregating $508, with costs, thirty days to make a case and a like stay of execution after notice of entry of judgment.
    
      
      F. H. Wilson, for plaintiffs.
    
      C. E. Souther, for defendant.
   Per Curiam.

The judgment appealed from should be affirmed, with costs,, upon the opinion filed by the learned trial judge.

Present: Freedman and Gilderslebve, JJ.

Judgment affirmed, with costs.  