
    Henry C. Briggs, App’lt, v. Jacob Ottman, Resp’t.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 3, 1888.)
    
    1. Contract—Of sale—Purchaser to remove goods—Limitation as to. time.
    Where plaintiff bought two “flying bridges” from defendant, located on premises leased by the latter for a term expiring February 1st, agreeing to remove them by that time, the plaintiff began the work January 26th, but had done very little, when on the 28th instant defendant notified him that, if he did not on that day put men enough at work to remove them, he would cause it to be done himself. Plaintiff not complying with this notice, defendant on the next day gave the bridges to another party, who with the employment of twelve or fifteen men completed the removal on the 80th. Plaintiff appeared on the 29th and notified defendant of his ability and willingness to remove them by February 1st if necessary. Held, that plaintiff was entitled to recover the value of the 1 ridges, as the time for their removal had not expired, and defendant had no right to assume that plaintiff would fail to comply with his contract.
    2. Same—Effect of delay in moving goods.
    As plaintiff had bought and paid for the bridges, defendant had no right to give them away, although plaintiff was slow in removing them.
    
      Appeal from general term of the city court of New York affirming a judgment in favor of the defendant, and order denying a new trial. The facts are sufficiently stated in the opinion.
    
      Benjamin G. Hitchings, for app’lt; Goejpel & Baegner, for resp’t.
   Van Hoesen, J.

The plaintiff bought from defendant, a smoke-stack and two flying bridges for twenty-five dollars, and was to remove them from the premises that the defendant occupied, but which he was compelled to surrender to his landlord. . After agreeing to make the sale to the plaintiff, the defendant, disposed of the smoke-stack to a Mr. Fagan. This breach of contract entitled the plaintiff to damages, and an adjustment was effected by the plaintiff agreeing to accept the sum of ten dollars and the two' bridges. As I understand the evidence, the plaintiff had an absolute right to the two bridges.

These transactions took place just prior to the twenty-fifth day of January, and the plaintiff knew that on the first day of February the defendant was to yield possession of the property to which the bridges were attached. -

Although the consequence of a failure on the part of the' defendant to remove the- bridges on or before the first of February are not known to us, it is certain that the plaintiff was informed that it was the wish of the defendant that they should be- removed before that day.

The plaintiff began to- remove the glasswork and the bolts of one of the bridges on the twenty-sixth of January, but he did not prosecute the work with -vigor, and accordingly on the twenty-eighth of January the defendant wrote to the plaintiff that if by one o’clock of that day he did not send down a force of men, other persons would be employed to remove the bridges. As the plaintiff did not at the time designated put his men to work, the defendant gave the bridges to Fagan, who took them down.

Soon after Fagan began the work the plaintiff appeared, and said that he was ready, able and willing to remove the bridges in a day, if such dispatch were necessary.

It took twelve or fifteen men the greater part of two days to- get the bridges out of the way. They were removed before the close of January 30th.

It appears, therefore, that though the plaintiff had, according to the defendant’s concession, until the 1st of February to remove the bridges, the defendant took the bridges away from him and gave them to Fagan on the 29th of January. This clearly he had no right to do.

It was not impossible for the plaintiff to do what Fagan easily accomplished, and the defendant had no right to assume that the plaintiff would fail to do the work. A breach of contract is not to-be presumed. In the case of Shales v. Seignoret (1 Ld. Raymond, 440) the defendant covenanted to transfer on a certain day, on giving three days’ notice, £1,000 of bank stock. In an action on the covenant, the defendant pleaded that on the day prior to the day appointed for making the transfer, the plaintiff had no bank stock. On demurrer, the whole court held the plea bad, because, though the plaintiff had no stock on the day previous, yet he might have performed his contract within the time. See Frost v. Clarkson, 7 Cow., 28.

It seems to me, therefore, that, assuming, as the defendant assumes, that the agreement of the parties was not a contract for the transfer of the title to the bridges, but merely a contract for work and labor to be performed before a specified time, the defense is not to be sustained.

But, as I understand the case, the bridges were sold to the plaintiff, and had been paid for by the accord and satisfaction that followed the breach by the defendant of his contract to sell the smokestack to the plaintiff. If this be so, what right had the defendant to give or sell them to Fagan, even if the plaintiff were slow in removing them ?

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Larremore, Ch. J., concurs.  