Citation Numbers: 34 A.D. 354
Judges: McLaughlin, Patterson
Filed Date: 7/1/1898
Status: Precedential
Modified Date: 10/28/2024
I dissent. . There was no dispute of fact to submit to the "jury.. The only question presented was one.of law,, and this was correctly disposed of by the trial court. It will be observed that all the allegations of the complaint Were,admitted by the answer, except those relating to the contract to sell the launches, tlie subsequent refusal to deliver them, and the assignment to the plaintiff. These allega^ tions were denied, but they were all established on the trial by uncontradicted evidence. Therefore, when the trial closed and the' motion was made for the direction of a verdict, the question presented was simply this : Whether an offer by the plaintiff to pay a portion of the purchase price of the launches in the defendant’s own obligations then due' was a compliance with the condition to pay cash, and equivalent to a tender of payment in cash. The trial court held that it. was, and in that I fully agree. Under the advertising contract the defendant, or the party whose obligation it had assumed, agreed to allow and' deduct from the contract price of launches, provided the price amounted to $5,000 or more, $1,155. The plaintiff’s assignor fully performed the advertising contract on his part to be performed, and the price of the launches contracted to
The judgment is right and should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide ■ event.