Baker v. Higgins — 21 N.Y. 397

Majority

p. 426

Baker v. Higgins.

Headnote

Entire Contract .

Under a contract in writing to deliver a certain quantity of bricks, at a specific price per thousand, a delivery, or offer to deliver, the entire .quantity, is a condition precedent to the right to demand payment.^[1]

Parol evidence is not admissible, to show that each par-eel was to be paid for on delivery.

* Appeal from the general term of the Supreme Court, in the third district, where judgment was entered for the plaintiff, upon the report of a referee.

This was an action for goods sold and delivered. On the trial, paroi evidence was given of a contract for the sale of a quantity of brick. A written contract being subsequently produced by the defendant, he moved to strike out the paroi evidence of its tenor, which was refused, and mn exception taken. At the close of the evidence, the defendant moved for a nonsuit, which was also refused, and'the defendant excepted. The referee found in accordance with the paroi evidence of the contract, and the judgment entered on his report having-been affirmed at general term, the defendant took this appeal.

Parmenter, for the appellant.

Bronk, for the respondent.

On the trial before the referee, the plaintiff gave evidence tending to show that, by the contract between liim and the defendant for the sale and delivery

p. 427

of the brick in question, by the former to the latter, the brick was to be paid for as they were delivered. It .also appeared, on the part of the plaintiff, that, at the close of the conversation between the parties, by which the contract was negotiated, the plaintiff wrote something on a piece of paper and handed it to the defendant, upon which the parties separated. None of the plaintiff's witnesses were able to state what the writing contained. The defendant produced arid identified the paper, which turned out te be as follows: “I will deliver John Higgins 25,000 pale brick, on the dock at East Troy, for $3 per M, and 50,000 hard brick, at the same place, at $4 per M, cash. -E. W. Baker, Coxsackie.” This, I think, was a valid agreement, and must be deemed and taken as the agreement then made between the parties, in relation to the brick, and under which a part was afterwards delivered.

Not long after this agreement, the plaintiff delivered to the defendant, at Troy, under the written contract, a cargo of brick, •'‘'consisting of 10,500 hard and 10,500 pale bricks, and demanded payment for that quantity, which the defendant refused, until the whole was delivered. This, I think, he had a right to do. The contract was entire, to deliver 75,000 bricks; and the plaintiff was not entitled to pay for any part, until the whole was delivered, or until he was ready and offered to deliver the balance, which the plaintiff has not done. The action was brought for the contract price of the 21,000 bricks delivered; and the referee found, contrary to the legal import of the written agreement, that the brick was payable delivery, as the same should be delivered. For this error, the judgment should be reversed, and a new trial directed in the court below, with costs to abide the event.

Judgment reversed, and new trial ordered.

Selden, Clerks and Wright, JJ., dissented.