
    The Otto Gas Engine Works, Respondent, Appellant, v. Michael E. Moore, Appellant, Respondent.
    Second Department,
    June 29, 1910.
    Contract—promise to deliver chattels—recovery óf money—necessity for demand — res adjudicata — disregarding decision of Appellate Division on new trial.
    Where a party has agreed to pay for a certain article in part by the delivery of an engine, a demand therefor is necessary before the obligation to deliver it can be converted into an obligation to pay its value in money. Hence, a complaint which seeks to recover the value of the engine shoúld allege a demand for delivery.
    Where the Appellate Division has construed a contract to mean that a certain engine shall be set up so as to operate a well, it is error for the court on a new trial to exclude evidence showing that this was not done and to refuse to find that the contract so intended.
    Cross-appeals by the plaintiff, the Otto Gas Engine Works, and the defendant, Michael E. Moore, from a, judgment of the Supreme Court, entered in the office of the clerk of the' county of Suffolk pn the 26th day of April, 1909, upon the decision of the court rendered after a trial at the Suffolk Trial Term, a jury having been waived.
    
      J. Woolsey Shepard and Woolsey A. Shepard, for the plaintiff.
    
      Rowland Miles, for the defendant.
   Jenks, J.:

The contract between the parties required the defendant to pay $200 in cash and to return an engine owned by him when the’ engine furnished by the plaintiff was “ in .successful operation.” This action is brought to recover the $200 and $125, the value of the engine to be returned. The court that tried the action without a jury gave.judgment for the $200 but dismissed’ the complaint so far as it related to the engine to be returned. It found that the value of that' engine was $125. Each party appeals, the plaintiff in that the judgment does not include the said $125, and the defendant from the whole judgment. The court, upon request of the-defendant found that the complaint did not allege a demand for the return of the engine or a wrongful and unlawful detention thereof, or a refusal to return after demand, “and proved no refusal after demand.” The-plaintiff did not sue to recover the engine but the money value thereof. Under the rule in this State a demand for the engine was essential before the obligation to return the engine could be converted into that for the payment of money. (Publishing Co. v. Steamship Co., 148 N. Y. 39. See, too, 9 Am. & Eng. Ency. of Law [2d ed.], 201; Weil v. Tyler, 38 Mo. 545; Parr v. Johnson, 37 Minn. 457.) In Weil v. Tyler (supra) the court say: “ Where a party has agreed or obligated himself to pay in specific articles, lie cannot be charged or proceeded, against as for a money debt till demand is made, and there is a refusal or neglect on his part to perform the contract; for until then he is in no default, and he has a right to insist on the terms of his agreement. And, on obvious principles, courts have no right to interfere with the contracts between parties, and to make one party pay money when by the terms of his contract he has agreed to pay, and the other party has agreed to receive, something else. As long as a party is ready and willing to comply with his contract he is entitled to stand by it, and it is only when he has been guilty of a breach that he is chargeable in a different manner.” The question of demand does not arise upon the recovery of the chattel, but upon the attitude of the plaintiff, in that it seeks to convert the obligation of the defendant to discharge his contract in part by a chattel to the payment of the money value thereof.

But we think that the judgment must be reversed, in view of our judgment in Moore v. Otto Gas Engine Works (136 App. Div. 713). That action, brought by this defendant against this plaintiff, was for negligence of the defendant in the installation of the pumping system of which.this engine Was a part. We held that the construction of the contract was that the engine and pump jack should be set up so 'as to “ operate that well'.” In the case at bar the court excluded evidence to show that this was not done, and refused to find that the contract so intended.

The judgment is reversed and a new trial is ordered, costs to abide the event.

Burr,. Thomas, Bich and Caer, JJ., concurred.

Judgment reversed and new trial grantéd, costs to abide the event.  