Marx v. Talking Doll & Novelty Co.

Defendant moves for judgment on the pleadings. The action is to recover damages for breach of a contract which is attached to and forms a part of the complaint. Under it the defendant agreed to sell to the plaintiffs talking machines, the minimum number to be not less than 250 per month, beginning in the month of September, 1915. For these the plaintiffs agreed to pay cash upon delivery. The plaintiffs were also given exclusive license to sell the machines on Long Island, with the exception of certain specified dealers, and they agreed not to canvass or accept orders from those dealers.

[1] The only point raised by defendant is that the complaint does not allege that the plaintiffs have "duly” performed all the conditions of the contract on their part. The complaint does not contain such an allegation. It contains the allegation that:

“Plaintiffs have performed and complied with each and every of the terms of said agreement on their part to he performed.”

If an allegation that plaintiffs have “duly” performed on their part is necessary in this complaint, the allegation quoted is not sufficient, as it is not an equivalent. Section 533, Civil Code; Ainsworth v. Acheson Harden Co., 158 N. Y. Supp. 630 ; Hedges v. Pioneer Iron Works, 166 App. Div. 208 , 151 N. Y. Supp. 495 .

[2] But is such an allegation necessary? Section 533 provides that in pleading the performance of a condition precedent it is not necessary to state the facts constituting performance, but the statement may be made that the party has duly performed on his part. If the facts showing performance on the part of the plaintiffs are pleaded, an allegation that they have duly performed all the conditions on their part would be superfluous.

Here the complaint alleges that the—

“plaintiffs were at all times ready, willing, and able to receive and pay for the said machines, and demanded the delivery thereof.”

The only obligations assumed by the plaintiffs under the contract were to pay for the machines upon delivery, and not to accept orders from certain specified dealers. The latter provision clearly was not a condition precedent to the performance of the contract, and consequently plaintiffs would not have to plead a compliance with it. The provision that the plaintiffs would pay for the machines on delivery was a dependent condition. The complaint states that the plaintiffs demanded the delivery of the machines and were ready and able to receive and pay for them. This seems to be a sufficient allegation of performance on their part.

[3] Even if this were not so, there is another reason why the complaint states a good cause of action. The contract calls for the delivery of a certain number of machines each month, beginning with September, 1915. The complaint alleges that the machines to be delivered in September and October were not delivered, and that in October the defendant notified the plaintiffs that it would be unable to deliver any of the machines until November. After the receipt of that notice, plaintiffs notified the defendant that they would not receive any of the machines, and brought suit to recover their damages.

The notice given by defendant, that it would be unable to deliver any of the machines before November, made it unnecessary for the plaintiffs to tender performance on their part. This notice, excusing the tender, amounted to a waiver of defendant’s right to require a tender by the plaintiffs, and, having been pleaded in the complaint, it was unnecessary for the plaintiffs to plead performance or tender. Shaw v. Republic Life Ins. Co., 69 N. Y. 286 ; Robinson v. Frank, 107 N. Y. 655 , 14 N. E. 413 ; Stokes v. Mackay, 147 N. Y. 223 , 234, 41 N. E. 496 ; Reed v. Provident S. L. A. Soc’y, 190 N. Y. 111 , 120, 82 N. E. 734 .

The motion for judgment is denied, with $10 costs.