Bronson v. Wiman , 1 Seld. Notes 85 ( 1853 )

In an action to recover damages for the non-delivery of flour, according to a contract of sale, by which it was to be delivered, at a particular place, and to be paid for on delivery, it is not necessary for the plaintiff to show a payment or tender of the price, but it is sufficient, if he was ready by himself or agent at the place appointed to receive the flour, and pay for it if it had been delivered.

Where the consignee to whom the flour was to be delivered, had been furnished with a copy of the contract by the plaintiffs, and requested by them to pay for the flour on its arrival, and there was evidence tending to show that he was prepared to do so,— Held, that á refusal to nonsuit the plaintiffs, on the ground that they had not shown a readiness to perform on their part, and the submission of the question.of readiness to the jury, was proper.

The defence attempted to be established, was, that the plaintiffs had fraudulently concealed intelligence which it was alleged they had received, before making the purchase, of a large advance in the price of flour, and the defendant proved that the plaintiffs had received a letter from Hr. Wing, of Albany, touching the state of the market — the purchase having been made at Oswego. The plaintiffs then offered the letter alluded to, in evidence, which was objected to, but admitted. Held, that the admission was proper.

Held, also, that the declarations of the defendant, made after he had received the information which the plaintiffs were charged with fraudulently concealing, to the effect that he was satisfied with the bargain, were properly received.

The finding of the jury in favor of the validity of the contract, upon the Question submitted to them, whether it was obtained by fraud, is conclusive upon that subject.

(See S. C., 10 Barb. 406.)