
    George T. Matthews, App’lt, v. Thomas McGrath, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed November 23, 1888.)
    
    ■Contract os sale—Construction of.
    By the terms of a sale it was optional with the vendee to take the goods sold on thirty days credit at three per cent discount; but failing to pay cash for the goods in thirty days, with the discount off, he was to give a¡ four months note in settlement. Held, that the thirty days having elapsed, and the vendee having failed to give the note as agreed, the bill, at the option of the vendor, became due, and he had a good cause of action for the purchase price.
    Appeal from a judgment, entered on a dismissal of the complaint, by Justice Pitshke on April 27, 1888.
    This action was commenced on June 2, 1887.
    The complaint alleges, in substance, that on April 21, 1887, plaintiff sold and delivered, and that defendant purchased, certain goods, viz., teas of the value of $191.33-100, which defendant promised to pay; that by the terms of sale-defendant promised, and was bound to pay and settle therefor in thirty days, viz., before May 21, 1887, and that defendant has not paid for same.
    Defendant, in his answer, alleges, upon information and belief, that said goods were sold upon a credit of more than thirty days, which credit had not expired when this action was commenced (June 2, 1887).
    Denies that said goods were of the value alleged.
    And for a second, separate and distinct defense sets up a counterclaim for breach of contract, and alleges that said goods were of an inferior quality, and not as warranted, and that he offered to return the same.
    The goods were sold by John J. Kneeland, a salesman of' the plaintiff, who testified that he sold the goods in question about April 21, 1887; that the amount was $191.33-100, and that he knew that they were delivered, and further testified as follows:
    “I remember the conversation I had with Mr. McGrath on the day that I sold them; there was conversation as to terms. When he had called off the packages of each of the lots that he bought, I put them down; and then I was putting on the terms, ninety days, and he objected to that, and he said that he could buy, buyers option three per cent on thirty days, or four months, and I said “let it be that way,” adding if he didn’t take advantage of the discount, that we would want a note when the thirty days was out. In other words, the agreement we made with Mr. McGrath was that he could have those goods on thirty days, three off, and buyers option, or a four months’ note if he didn’t take advantage of the discount. If he didn’t take advantage of the discount there was to be a four months’ note.”
    “I simply told Mr. McGrath that if he did not take advantage of the discount, three off, thirty days, that we wanted his note at four months. And he never gave it.”
    It was conceded by defendant’s counsel'“ that the only defense relied on, is the non-expiration of the credit given on the sale.”
    
      The plaintiff testified that he called upon the defendant more than thirty days after the sale, and that he went there for the purpose of getting the note, that he did not give it and has never got it.
    It also appears that at the time of the sale defendant was not asked about his standing.
    
      B. C. Chetwood, for app’lt; Jas. T. Byrne, for resp’t.
   McGown, J.

It being conceded, that the only defense relied on was, as to the non-expiration of the credit given on the sale, the only question to be considered is whether this action was prematurely brought; if so, the action of the trial justice in dismissing the complaint was proper.

By the terms of sale as testified to, and which testimony is uncontradicted, it was optional with the defendant to have the goods on thirty days, three off, but that if he did not pay cash for the goods in thirty days with the discount, off, he was to give a four months’ note in settlement. Not having given the note, and plaintiff having waited until after the expiration of the thirty days, the bill at the option of the plaintiff, became due, and the plaintiff had then a good cause of action.

Defendant promised to give a four months’ note, and having done so, and not having complied with his agreement, plaintiff had a right to assume that the credit was not required.

I think that the trial justice erred in dismissing the complaint; that defendant should have been put upon his defense, and that the whole matter should have been submitted to the jury under a proper charge of the justice, as to the legal effect and proper construction and meaning of the agreement of sale of the goods in question.

Without considering the question of fraud or other questions raised upon the trial, I think the judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

Brown and Ehrlich, JJ., concur.  