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Partridge o. Gildermeister.

PARTRIDGE v. GILDERMEISTER.

September, 1864.

Affirming 6 Bosw. 57. Under a contract for the sale of merchandise, by which the seller was

entitled to receive payment in notes of a third person, as he made part deliveries, the buyer, after a part delivery, refused to give the notes, on the ground alone that he was merely an agent in making the purchase..

Held, that this was a breach on his part which waived his right to demand the rest of the goods, and entitled the seller to recover for what he had delivered, without further performance.*

James C. and Josiah Partridge sued Daniel Gildermeister, in the New York superior court, to recover nine hundred and forty-six dollars, the value of merchandise sold by plain tils to defendant, on an agreement that it should be paid for in the notes of John Machado, or of J. A. Machado & Co., having not more than six months to run, which notes the plaintiffs had demanded from defendant after they had delivered the goods; but delivery of the notes being refused by defendant, they therefore now sued for the money value of the goods.

On the trial, defendant adduced evidence in support of his answer, to show that, in the character of agent for one Colquitt, he had contracted with plaintiffs for chairs to the value of two thousand three hundred and ten dollars, to be delivered on board the ship “Ellen Hood"; that plaintiffs so delivered a part of the chairs, and requested further time to deliver the rest, on the ground that they were not yet manufactured; that thereupon an agreement was made that the residue should be delivered on the ship “Martaro," which agrecment the plaintiff had failed to perform, and had failed to deliver any more of the goods.

As to the question whether the goods were all to be delivered before the notes were transferred, the evidence was conflicting.

The plaintiffs gave evidence to show that after the delivery of the chairs on board the “ Ellen Hood,” Machado became

* Compare Baker v. Higgins, 21 N. Y. 397.

Partridge o. Gildermeister,

insolvent; and that plaintiffs had demanded the notes of the defendant, who refused to deliver them, saying that the goods were bought for Colquitt, and that plaintiffs must look to him, but gave no other reason for his refus.ıl to deliver.

Defendant asked the judge to charge as follows: “That if the jury believe from the evidence that the contract between the plaintiffs and either Gildermeister or Colquitt was to furnish two thousand three hundred and ten dollars' worth of chairs, then plaintiffs cannot recover for the amount actually furnished, unless the contract has been waived by the consent of the partits, or the other party to the contract has released the plaintiffs. That the denial of the contract by the desendant when applied to for the notes, even if found by the jury, is not a waiver of performance on the part of the plaintiffs.

“ That if the jury find that the insolvency of Machado & Co. occurred after the delivery of the goods in suit, the fact that Machado & Co. had become insolvent was not a sufficient ground for the plaintiffs to rescind the contract.”

The judge refused to instruct the jury thus, and in the instructions which he gave them, placca the liability of the defendant (if he were in fact the purchaser), on the question whether it was agreed that all the chairs were to be delivered before the notes were to be delivered. If they were not all to be delivered before delivery of the notes, the liability of defendant would depend on what answer he made when the notes were delivered.

Defendant excepted. The jury found for plaintiffs, for one thousand and forty-six dollars and eighty-three cents.

The superior court, at general term, affirmed the judgment entered thereon, upon the ground that there was nothing in the evidence calling for the instructions asked for; that Col. quitt's denial that he had contracted for the chairs, or had bought those delivered, and his refusal to pay for them, relieved plaintiffs of any necessity of an offer to deliver more chairs. That plaintiffs at no time refused to receive the notes of Machado & Co. or to deliver chairs for them. That their right to recover did not depend upon their right to rescind any contract which they had made, but was based on defendant's re

Partridge o. Gildermeister.

fusal to perform his contract, as the purchaser of the chairs. Reported in 6 Bosw. 57. Defendant appealed to this court.

James Emott, for defendant, appellant ;-Cited Oakley v. Morton, 11 N. Y'. 25; Champlin v. Rowley, 17 Wend. 187. And as to the effect of insolvency, Benedict v. Field, 16 N. Y. 595.

John T. Hoffman, for plaintiffs, respondents;-Cited Crary v. Smith, 2 N. Y. (2 Comst.) 60; Meserole v. Archer, 3 Bosw. 376; 20 Barb. 515; 15 Wend. 474; 1 E. D. Smith, 463.

BY THE COURT.-DENIO, Ch. J.-The only real question in the case was, whether the purchase of the chairs was made by the defendant, or by Colquitt through the defendant as his agent. This question was fairly left to the jury, and their finding is that the purchase was by the defendant, and not by Colquitt.

The other branch of the defense was, that the sale of the chairs was part of an entire contract for a larger quantity, and that the plaintiffs had failed fully to perform on their part, and could not therefore recover for their partial performance. I do not think their claim was sustained by any view of the evidence. Upon the defendant's testimony, the chairs which were not delivered on board the “Ellen Hood” were to be subsequently manufactured and delivered; they were tracted to be shipped by the defendant by the “Martaro," a ressel he was afierward to send to South America. In order to put the plaintiffs in the wrong, respecting the chairs to be manufactured, the defendant should have shown that he called on them and offered to deliver the notes of Machado, which the plaintiffs had agreed to receive. This was not done, and it does not even appear that the vessel in which they were to be sent ever sailed or was ever ready to sail. The plaintiffs did not agree to deliver the goods on the credit of any one but Machado. They were not bound io part with the chairs without at the same time receiving the notes, and they were never offered such notes nor required to deliver any more chairs. They have therefore committed no breach of the agreement ou

con

Partridge o. Gildermeister.

their part which should deprive them of payment for the chairs delivered.

If we should consider the contract for the chairs manufactured and delivered, and for those to be afterward made and delivered, as parts of an entire contract, still the plaintiffs were not to wait for the payment for those delivered until the others should be manufactured. They were to take the notes of Machado having six months to run, but they were to have the notes when they delivered the chairs. They seem not to have immediately exacted the notes for the chairs delivered, but they demanded them some time afterward; but instead of delivering them, the defendant, the purchaser, repudiated the contract and refused to deliver them. This was a breach of the contract on his part, which relieved the plaintiffs from the obligation to deliver any more property, and enabled them to sue immediately for that which they bad delivered.*

The foregoing is the result of the evidence according to the testimony on the part of the defendant, and it is apparent * from it that there was nothing to submit to the jury, except the question, whether the defendant or Colquitt was the contracting party. The judge should have instructed the jury that if they found against the defendant on that issue of fact they sh vuld give their verdict for the plaintiffs. By leaving further questions to the jury, he gave the defendant a chance for a verdict to which he was not entitled. Of this he cculd not of course complain.

The charge actually given was not excepted to. The further positions which he desired to have charged, were either covered by the charge, or were in themselves incorrect, or were immaterial. He desired to have the jury instructed that the plaintiffs could not recover unless the parties were agreed to waive the further delivery, as the defendant had released the plaintiffs from further performance. This leaves out of view the rescission of the contract, by the defendant refusing to perform on his part, which was conceded by the defendant's evidence, and was the only waiver or release indicated by any part of the evidence. The judge had correctly explained the effect of such refusal to perform in the charge already given.

* See Lee o. Decker, reported in this volume.

Peck v. Minot.

He then desired to have the jury told that the defendant's denial of the contract when he was called upon for the notes of Machado, for the chairs already delivered, was not a waiver of the further performance by the plaintiffs. The judge had already instructed them correctly on that point when he told them that the claim of the defendant, that Colquitt was the purchaser, and his consequent refusal to give the notes, dispensed with a further performance on the part of the plaintiffs.

The last proposition of the request was irrelevant. The plaintiffs had claimed notes on the ground of Machado's insolvency. That fact certainly would not relieve the defendant from giving their notes according to his agreement. He did refuse, and thus broke bis agreement, and became bound to compensate the plaintiffs for the goods which had been delivered.

I think the appeal was wholly without merit, and that the judgment appealed from should be affirmed, with damages for the delay.

All the judges concurred, except H. R. SELDEN, J., who was absent, and MULLIN, J., who dissented, on the ground that the two reqnests, taken together, were sound and should have been given to the jury.

Judgment affirmed, with costs.

PECK v. MINOT.

December, 1867.

Afirming 4 Robt. 323.

Where a debtor gives his creditor a bond and mortgage to secure the

balance of their account, and thereafter transactions continue between them, by which the balance passes to an equal amount against the mortgagee, the question whether the mortgage is paid thereby or continues as a subsisting security, depends on the intention of the parties,

which is a question of fact. If it was their intent and agreement that the money secured by the

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