Myers v. Davis , 26 Barb. 367 ( 1858 )

By the Court, C. L. Allen, P. J.

The defendants’ counsel insists that the justice finds no such special agreement as alleged in the second answer of the defendants. It is true that the finding states that there was no express agreement; but that there had been mutual deal, between the defendants and Watrous & Lawrence, previous to the assignment, in Which work ordered from the defendants was applied on their account; that on the 9th of February, 1855, Watrous & Lawrence ordered from the defendants the churns and cultivators, mentioned in the answer, and were to furnish the zinc necessary for their manufacture, which is one of the items charged in the plaintiff’s account. At the same time the order was sent, and at the bottom of it, were these words: “ If you want zinc let us Itnoio immediatelyand as late as the 26th of March, 1855, Watrous & Lawrence, in writing to the defendants, and sending them the amount of their account as then claimed at $470.19, say as follows: “Your farther order is just at hand and being filled for the morrow. We are glad to see you dipping in again, and suppose our order once completed for churns, we shall oiue you.” Taking all these circumstances together, in connection with the testimony of the parties and the other evidence in the case, I think there can be little doubt but an implied agreement was proved that the churns and cultivators should apply upon the account of Watrous & Lawence against the defendants. Why should they inquire in the order, if zinc was wanted immediately, and why should they write on the 26th of March, 1855, that when the order for the churns Was completed they should owe the defendants, unless it was perfectly understood between the parties, that they were to be applied in payment of the account ? They had been in the habit of dealing in this same manner before, so long, that it was always understood that whatever was made for Watrous & Lawrence, by the defendants, should be offset, on account. The order amounted to a request to the defendants to manufacture the chmns and cultivators with ordinary diligence. It is proper we should consider that fact with other evidence in the case. One of the defendants testified that it was expressly agreed, between Watrous & Lawrence and the defendants, that the former should furnish zinc for the churns. This was before the written order of the 7th of February, and the evidence was objected to for that reason; but I think it was proper as going to show what was intended by the order. In construing any writing, say the court of appeals in Blossom v. Griffin, (3 Kern. 569, 574,) “it is proper to look at all the surroundsing circumstances-, the pre-existing relation between the parties, and then to see what they mean to spealc.”

At all events, the price of the manufacture became a debt against Watrous & Lawrefice, which was a good set-off against their account, and formed a good defense to this action; unless the defendants failed to fulfill the order on their part, agreeably to its stipulations. The plaintiff’s first objection on this ground is, that by the order the articles were to be sent to Watrous & Lawrence; that the contract therefore was ex-ecutory, and no rights under it accrued to the defendants nntil it was fulfilled on their part. That the articles were never “ sent,” and the contract therefore never performed. It does not appear that this objection was taken at the trial; but if it was, I think the defendants showed a sufficient excuse for not sending or tendering the articles. They were very bulky, and at a distance from the place of residence of Watrous & Lawrence. It was not practicable to make a manual tender. But the defendants offered, on the 21st of May, to send so many of them as would in value liquidate the amount of their indebtedness to Watrous & Lawrence, and to send the whole, if the plaintiff as assignee would secure to them the balance which Would be due to them after deducting their account. To this proposition the plaintiff refused to accede, alleging as his sole reason, that the defendants were too late; that “ the manufacture of them was too late—they should have been manufactured before.” Besides, the failure of Watrous & Lawrence, coupled with the plaintiff ys refusal to have any thing to do with the property, dispensed with the necessity of a formal tender. It would only have been imposing an unnecessary expense upon one of the parties. I think it is too late to interpose this objection at this time, and that at all events it is answered by the evidence.

But the plaintiff insists that no time being specified in the order, it should have been complied with within a reasonable time. That the offer to comply was not made until the 19th May, whefi the best of the season for selling such articles had passed. The testimony on this point was a little variant. The weight of it, however, was, that the best time for selling was in May and June. Be this as it may, the justice who tried the cause has found the fact that the articles were ready to be sent forward about the middle of May, and within a reasonable time after they were ordered, considering the means of manufacture possessed by the defendants; and he adjudged as matter of law, that the offer made, to deliver on the 21st of May, followed by a refusal to accept, together with the bulky character of the articles, was a sufficient excuse for not tendering the articles themselves. In this conclusion I think he was correct. The zinc was to he furnished by Watrous & Lawrence. It was not forwarded until the 20th March; and as late as the 26th, as appears by their letter of that date, they contemplated receiving the articles in a reasonable time thereafter, for they say we “ suppose our order once completed for churns, we shall owe you.” They knew the situation and means possessed by the defendants for manufacturing the article ; and they did not require, nor had they any reason to expect, that the defendants would enlarge their shops, or erect new ones, for the purpose of expediting their order.

It is said the offer of 21st May was invalid, because the articles were not separated from others of a like description, and no title passed to the plaintiff. The justice has substantially found otherwise, and I do not so Understand the evidence. It is sufficient, however, to observe, that the plaintiff did not put himself upon this ground at the trial, nor on the other ground sought to he taken here, that the teeth were not placed in the cultivators. If either objection had been taken at the proper time, it might have been obviated. They cannot be urged now for the first time.

[Montgomery General Term, January 5, 1858.

The judgment should be affirmed.

C. L. Allen, James and Rosekrams, Justices.]