Bass v. White , 7 Lans. 171 ( 1872 )

By the Court—

Gilbert, J.

The contract in this case is clear and unambiguous. It was made in New York. By it the defendants sold to the plaintiff 400 tons of coal, to be delivered either at Fort Trumbull, New London, or at Fort Adams, Newport, during the then season of navigation, and the plaintiff agreed to pay cash for the coal on receipt of the bill of lading. Two hundred tons of this coal had been delivered to the plaintiff, and paid for before the transaction in controversy arose. With respect to the remaining 200 tons, it appears that the plaintiff gave to the defendants an order for the shipment of the coal to Fort Trumbull, and it was shipped accordingly. The defendants then sent the bill of lading of this coal to the plaintiff and asked him to pay the price. The plaintiff told the messenger that there was some money due him on account from the defendants, and asked to have that deducted from the price of the coal, offering to pay the difference. This being declined by the messenger, the plaintiff afterward, and on the same day, made a similar offer to the defendants personally. The defendants in reply required payment of the whole amount of the bill, as a condition of letting the plaintiff have the coal. The plaintiff then offered the defendants his check for that amount, which they declined to receive, and they also refused to receive the check with the indorsement of a Hr. Talmage upon it.

These facts substantially are testified to by the plaintiff himself. The rule of law arising out of them is not doubtful. It was the duty of the plaintiff to pay cash for the coal on a tender of the bill of lading. If at the time of such tender he had not the money in hand, but had it elsewhere, the law would, upon his request, afford him a reasonable time to obtain the money. If, therefore, upon the defendants’ refusal to take the check", the plaintiff had asked for time to get the cash upon the check, and the defendants had refused to give the time, a different question would have been presented. But the plaintiff made no such request. The defendants were under no obligation to take the check or anything else in lieu of money. (1 Den., infra-.) Nor were they under an obligation to take it and deliver the coal on any other day than when the bill of lading was tendered. The plaintiff was clearly in default, therefore, in not paying for the coal upon a tender of the bill of lading, and that tender, and the failure of the plaintiff to pay, discharged the defendants from the obligations of the contract. The subsequent tender of the price and demand of the coal by the plaintiff was a nullity, for he had by his own previous breach of the contract terminated his rights under it, and given the defendants a right of action against him for any damages they might have sustained in consequence of such breach. (Story on Sales, §§ 413 and 415; Leven v. Smith, 1 Den., 571; Startup v. McDonald, 6 M. & G., 593; Des Arts v. Leggett, 16 N. Y., 584.) Upon the undisputed facts of the case, the defendants were entitled to the verdict.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Judgment reversed.