Ketcham v. Hiller , 1866 N.Y. App. Div. LEXIS 193 ( 1866 )

By the Court, Gilbert, J.

The question in this cause is, whether a breach of the contract by the defendant was proved. The contract was made on the 22d of September, 1863, in which it is stated that the defendant had purchased of the plaintiff 500 barrels of refined pretroleum, &c. &c. in bond, in good shipping order, to lighter, deliverable from the 20th of October to the 30th of November, at buyer’s option, with ten days notice to seller, buyer to furnish the necessary evidence of export, or pay the United States tax thereon. The defendant did nothing under the contract before the 30th November, 1863, and on that day the plaintiff, between five and six o’clock in the evening, handed to the defendant a bill of the oil, a guager’s return of the quantity, and a certificate of the inspection of it, and told him the oil was ready for delivery at his yard.. The defendant then made no reply, hut on the third day afterwards repudiated the contract, on the ground of the insufficiency in point of time of the aforesaid tender of the plaintiff. The jury found that the plaintiff had the oil, and that it was of the prescribed quality, and in good shipping order.

Upon the trial, the defendant claimed that the oil should have been tendered a sufficient time before the expiration of the contract, to enable him to inspect it. The court held that the tender was good, and that it need not have been made early enough within the contract time to have given the defendant a reasonable time to examine and accept the oil prior to the expiration of the contract time. The defendant excepted to this finding, and upon this exception the question arises, which is decisive of the case. We are of the opinion, that no error was committed by the court below. The oil was to be delivered, not to the defendant personally, or at his place of business, but “ to lighter.” The evidence shows that the plaintiff was a refiner of the oil; that he had a manufactory for that purpose, connected with the wharf in that part of Hew York ; and that the oil wag purchased for exportation. It is fair to infer, therefore, that the parties intended, when they entered into the contract, that the defendant should send a lighter to receive the oil, and by the terms of the contract, he was “ to furnish the evidence of export, to release the plaintiff’s bond to the government.” It was the duty of the defendant to prepare these preliminary acts, receive the oil, and pay for it. And he was bound to be ready to receive the oil a sufficient time before the expiration of the contract time to enable the plaintiff to deliver it within the contract time. The defendant was clearly in default, and the offer to deliver made by the plaintiff was sufficient. He could do no more. He could not deliver the oil pursuant to the contract, because the defendant had neglected to furnish, or willfully withheld, the means requisite to enable him to do so. The defendant certainly cannot be permitted to annul his obligation under the contract, by thus withholding the means of a performance of it by the plaintiff. (Crooke v. Moore, 1 Sandf. 302. West v. Newton, 1 Duer, 283.) The case of Hartup v. McDonald, (2 Man. and Gr. 593,) on which the defendant relies, we think, has no application to the facts, and does not affect the principle of this case.

[Orange General Term, September 17, 1866.

The judgment should be affirmed.

Scrugham, Zott, Z. J?. Barnard and Gilbert, Justices.]