
    Samuel Lawrence, Resp’t, v. Eugene Everett, App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 18, 1890.)
    
    'Contract—Sale—Breach—Tender oe purchase money.
    Where goods are bargained for and sold and there is no stipulation for credit or delay, no right of action accrues as for a breach of contract, by .reason of non-delivery, without a tender of the purchase money. A mere readiness to pay is not sufficient.
    Appeal from judgment of the fourth district court.
    
      S. Muller, for app’lt; J. G. Rosenbaum, for resp’t.
   Per Curiam.

This is an appeal from a district court. The pleadings in the action were oral. The plaintiff's complaint was “ for damages for breach of contract on assigned claim.” The answer was a general denial. The plaintiff’s claim, as made on the trial, was that he purchased from defendant a certain line of goods for $66.10, on condition that defendant would sell him certain other goods which he expected to receive, to wit: about ten ■ounces of aigrettes, at six dollars an ounce ; that defendant never delivered the aigrettes. The defendant denied that the bill of goods sold was sold on any condition whatever. The evidence on behalf of the plaintiff as to the making of the contract is as follows:

Q. State what the conversation was and what you said to him ? A. I went to see him about that time to buy some long white aigrettes ; when I came in the place he said that I had never bought any goods of him before and he did not see the reason why I should now; I said I would buy the goods if I could get the aigrettes.

Q. He said that you had never bought any goods from him before and there was no reason why you should buy them now ? A. Yes, sir; and I said I will buy those goods if he would sell me the aigrettes.

Q. What did he say? A. That he would.

Q. Did you at that time purchase any goods from him? A. Yes, sir. 1

Q. Those goods were bought only upon condition that the aigrettes were to be subsequently delivered ? A. Yes, sir.

Q. State whether those goods were purchased upon any condition? A. Upon the condition that I would get the aigrettes.

Q. What was the condition; what was said at the time ? A. It was said that if I bought the goods I would get the aigrettes.

Q. When were you to get them ? A. As soon as he received them.

Q. How many aigrettes had he promised you; was any promises made as to the amount? A. He expected about ten ounces.

Q. Did you go into the market; what was your price with Mr. Ewrett for these aigrettes? A. About six dollars an ounce.

And the evidence on his behalf as to the receipt of the aigrettes by defendant is as follows, one witness testifying :

Q. Did you have any subsequent conversation with him about-the aigrettes having come here ? A. Yes, sir; I did; Mr. Everett came to our store one day and I told him where are the aigrettes; he said: I am going right down to the express office, they are here- and I will send them up to you and you can break the seal.

Another witness testified:

Q. State what was said while Mr. Everett was present ? A. He was present in my place when we were talking together because we paid such a big price for those goods; he said I will write a note to the express office and send the aigrettes down and. you will make up for what you paid for the skins.

The defendant being put on the stand testified, that there was-no sale or contract to sell the aigrettes. His evidence on this subject is in substance:

Q. .You never promised specifically to sell aigrettes at six dollars per ounce ? A. No, sir; they were worth thirty-five dollars-per ounce; the plumage is what he wanted and not the aigrettes;, they were worth nine dollars per ounce and the short plumage for ladies hats they were worth thirty-five dollars per ounce; he said after he bought the goods, I have paid you a big price ; I said, I do not.know what you paid me; I want you to. help me out, he said; I paid you a big price and I want you to sell me some aigrette plumage; I said, certainly, I will sell you anything I have, I will be pleased to; I had no plumage in sight at that time; at that time aigrettes plumage was thirty-five dollars per ounce and not nine dollars, and if he said I agreed to sell him for six dollars, an ounce at that time, it is erroneous.

Q. You told him you would deliver aigrettes to him? A. That is absolutely false, at six dollars per ounce.

Q. What he says is not so? A. Yes, sir.

Q. When he came to see you, what did he ask for ? A. Aigrette plumes, I believe; I admit that.

Q. Those were the plumes that he referred to as purchasing for twelve dollars afterwards ? A. I do not know what he agreed to buy them for.

Q. You did not sell him aigrette plumes ? A. No, sir.

Q. You sold him skins ? A. Yes, sir.

Q. He didn’t come in for the purpose of buying skins ? A. I do not know.

Q. He came in, asked for aigrettes? A. Yes, sir.

Q. And you told him that you did not have any ? A. Yesr sir.

Q. But you expected them? , A. Yes, sir.

Q. And if any came in he would get them ? A. Yes, sir.

Q. When you spoke to Mr. Lawrence about these aigrettes, as you say, you did not promise him aigrettes when they came; did you say to him at that time that he would have the first chance at aigrettes when they came ? A. Yes, sir.

Q. Was anything said about the price? A. No, sir.

Q. Nothing about the price ?. A. No, sir.

And the evidence as to the receipt by him of the aigrettes, and his statement at Freedman & Co.’s is in substance:

Q. Did you tell them that you had them in the express company’s office ? A. I told them I had, but there was a draft against them.

Q. Did you ever take out that shipment of aigrettes, the one which you referred to, while up in the store of Freedman & Co., the one which there was a draft against ? A. I never got any aigrettes.

Q. When you came up to Freedman & Company’s store on Broadway and Mr. Lawrence complained to you that he had paid such an enormous price upon condition that you would give him aigrettes, and that you didn’t give him aigrettes, you said that you were sorry for him and that you would make things all right ? A. I would try to help him out in further purchases.

The goods which were sold for $66.10 were delivered and the purchase money paid at the time of the sale.

The plaintiff obtained judgment below for sixty dollars. From the amount claimed in the summons, $66.10, and the evidence adduced by the plaintiff tending to show an offer to return the goods sold and delivered, it would seem that the plaintiff originally placed the case in the aspect of an entire contract of sale of both lines of goods and claimed to rescind the contract and recover back the amount paid for the goods sold and delivered by reason of the breach in the non-delivery of the aigrettes.

But from the facts that the judgment is for sixty dollars and that the plaintiff introduced evidence as to the sum he was obliged to pay in the market (the difference between the sum he paid and the sum which he says the defendant agreed to sell for being equal to the amount of the judgment) it would seem that the case at the trial was put upon the theory of there being a separate and independent contract for the sale of the aigrettes, and a claim for damages for a breach of such contract by reason of the non-delivcry of the goods. In whichever aspect the case is viewed (and conceding the evidence is sufficient to establish a contract for the '■•ale of the aigrettes according to either claim, which is exceedingly oubtful, and without passing on the question whether the claimed contract is void for uncertainty or not, or the question whether or not the defendant was bound to pay the draft against the aigrettes, whatever the amount, so as to procure the goods for delivery to the plaintiff) there is an insuperable objection on the evidence to sustaining the judgment. ■

Where goods are bargained for and sold and there is no stipulation for credit or delay, no right of action accrues as for a breach of contract by reason of non-delivery without a tender of the purchase money. A mere readiness to pay is not sufficient. Speyer v. Colgate, 67 Barb., 192; Nelson v. Plimpton Co., 55 N. Y., 480.

In this case there is no proof of a tender to the defendant of the purchase money of the aigrettes: it follows therefore that the plaintiff has established no cause of action arising out of their non-delivery.

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

Allen and Bookstaveb, JJ., concur.  