Dox v. Dey , 3 Wend. 356 ( 1829 )

By the Court,

Marcy, J.

It was contended on the trial, and is insisted here, that there is a fatal variance between the first count of the declaration and the agreement produced in support of it, because in declaring, notice is not taken of the one dollar stated to have been paid on entering into the contract. What is said in relation to this payment is not a substantive part of the agreement, and any mention of it in pleading might therefore have been dispensed with without prejudice to the party setting up the agreement. It was nothing more than an acknowledgment incorporated in the agreement that one dollar towards the consideration had been paid.

Another variance between the proof and the declaration is insisted on by the defendant. By the terms of the contract, the wheat was to be delivered on demand at any time after the 1st of April. The declaration alleged a demand and refusal on the 20th of August, and the proof does not shew a demand till the 18th or 20th of September. It is true, as contended for by the defendant, that no cause of action existed against the defendant on this contract until a ¿eman¿ by plaintiffs and a refusal to deliver by the defendant; but I apprehend that it is a mistake to suppose that the precise day on which the refusal took' place need be specified. In proving the breach of a contract, the party is nothin a ease like this,;confined to the day stated in the- declaration. It is sufficient if he show a cause of action which arose before the. commencement of the suit.

• It is said1, on the. part of the defendant, that this is a case of mutual and dependent promises, and that the plaintiffs are not. entitled to recover, they not having averred a readiness to. pay and proved a tender. In opposition, it is: asserted- that the promises are: independent; and if not, that a sufficient tender was proved on the trial. It is indisputable, that where promises or agreements are independent of each other, each party may have a right of action before he has performed on his part. No readiness is averred on the part of the plaintiffs to pay for the. wheat, nor do I connsider the proof as establishing a legal tender. The objection of the defendant, therefore, to the recovery in this case must prevail, unless-the agreement to deliver the wheat is independent of the agreement to pay for it.

It is often a matter of great difficulty to ascertain the character of contracts in relation to the distinction of their being dependent or independent', and a solution of the difficulty is only to be sought in the intentions of the contracting parties, to be gathered from the terms used by them. All the cases on this subject were examined by Sergeant Williams, in a note to Pordage v. Cole, (1 Saunds. 320,) and certain rules are there laid down for construing contracts with reference to the distinction now under consideration. By these rules, which are not only established by the high authority of the annotator on Saunders’ reports, but are adopted by Mr. Chitty, (1 Chitty’s Pl. 313,) all doubt as to the contract in question is removed. If a day be appointed for the payment of money, and it is to happen or mmj happen before the - thing which is the consideration of the money is to be performed, an action may be brought for the money before performance. (1 Saunds. 320. n. 4.) Let this rule be applied' to this case. The money for the wheat was to be paid on the 1st of September, and the wheat was to be delivered when demanded, after the first of April succeeding the date of the contract. The thing to be performed as the consideration for the money was the delivery of the wheat; andas it was optional with the purchasers to demand it before or after the money was to be paid, the day for the payment might happen before the thing to be performed. The wheat was not demanded till the 18th of September; but there is no doubt the defendant might have sustained his action for the money, if he had seen fit to sue after the first and before the 18th of that month; and if the agreements would have been construed independent as to one party, they necessarily are so as to the other.

A part of the consideration (a small part to be sure) was paid; and it seems to be settled, that where a person has received a part of the consideration for which he has undertaken to do some act, he cannot excuse himself for not performing it because he has not received the whole, unless it clearly appears that the payment of the whole consideration was a condition precedent to the performance. I do not think, as the defendant contends, that the delay of the plaintiffs to demand the wheat till after the day stipulated for the payment of the purchase money, thereby made the payment a condition precedent. The original character of the contract could not be changed by the delay to demand the article sold, as long as the right to delay was secured by an express stipulation.

There is nothing in the evidence to warrant the application to this case of the doctrine of the case of Van Benthuysen v. Crapsor. (8 Johns. R. 257.) There was no actual refusal on demand to pay for the wheat; no evidence of inability; no unreasonable delay. There was nothing in the conduct of the plaintiffs that shewed any intention to rescind or abandon the contract on their part, or to authorise the defendant to do so.

The judge did not, as the defendant’s counsel seems to have understood him, direct the jury to allow interest on the sum which they should find the wheat to be worth after the demand; but in ascertaining the plaintiff’s damages, he observed they might, if they thought proper from the nature of the transaction, include interest as an item in making up the amount of damages. There was not in this remark any direction contrary to law.

The damages laid in the declaration are $1000, and the Verdict $1670,92. The excess of the verdict beyond the damage's claimed is one of the grounds on which a new trial is asked. With the case are also papers for a motion, on the part of the plaintiffs, to amend the declaration by increasing the amount of the damages laid in it. The court cannot consider this objection on a case made on the part of the defendant, with a view to obtain a new trial, because, until the record is made up, it cannot be ascertained that the plaintiffs will claim more damages than the sum specified in the declaration. They have a right to remit the excess found by the jury; but if they should make up the record and take judgment therein for the whole amount of the verdict, it would be error. The motion on the part of the defendant for a new trial must therefore be denied.

In relation to the plaintiffs’ motion to amend, I find no precedent for it in the reports. At the last term of this court, a similar motion was denied upon the ground that such an amendment would be improper, without giving the defendant an opportunity of reducing the damages, which on the trial he had no occasion to do, by reason of the moderate amount claimed in the declaration. Considering the circumstances of this case, we grant the motion to amend, on condition that the plaintiffs give up their verdict, pay the defendant’s costs of the trial and of this motion, and consent to a new trial.

Defendant’s motion for a new trial denied. Plaintiff’s motion to amend-granted on terms.