Levy v. . Burgess

Andrews, J. • The contract , between the parties was mutual, and it was to be performed by each at the same time. The plaintiffs bound themselves to deliver the bonds on the day named in the contract, and the defendant, at the same time, was to pay the purchase-price. The parties, after the contract was made and before its maturity, fixed upon an hour when they would meet at the office of the plaintiffs, on the day the contract matured, to perform it. This became a part of the agreement between them and had the same force and effect as if the particular time and place of performance had been named in the original contract. (Franchot v. Leach, 5 Cow., 506; Davis v. Talcott, 14 Barb., 612.) The plaintiffs, therefore, in order to recover against the defendant, were bound to show a performance of the contract on their part, by delivering or tendering the bonds to the defendant at the time and place appointed, or that performance at that time was prevented or waived by the defendant. ( Williams v. Healey, 3 Den., 363 : Nelson v. Plimpton Fire Proof Elevating Co., 55 N. Y., 480.) The judge, on the trial, directed a verdict for the plaintiffs, and the propriety of this direction is to be tested by assuming that the jury would have found the contested facts in favor of the defendant. The defendant testified — and in this respect there is no serious discrepancy between his testimony and the plaintiff’s — that he went to the plaintiffs’ office at the hour appointed, on the day the contract matured, to receive and pay for the bonds, and was informed by the *395 plaintiffs that they had not yet received them. The plaintiffs, when the contract was made, did not own the bonds they agreed to sell, but they afterwards contracted to purchase them of one Koenig, to enable them to perform their contract with the defendant. The plaintiffs’ contract was to deliver bonds of “ The Alabama and Chattanooga Railroad,” indorsed by the State of Alabama. They informed the defendant, at the interview referred to, that the person from whom they had bought the bonds, had tendered bonds on his contract which they had refused to accept, the objection being that a part of them were not properly indorsed by the State of Alabama, for the reason that the governor of that State had not signed the indorsement as governor, but in his own name, without adding his official designation. The Glen eral Term was clearly right in holding that this objection was not well founded, and that the indorsement was the act and contract of the State. The instrument of indorsement purports to bind the State; it refers to the acts of assembly under which the indorsement by the governor on the part of the State was authorized. The in testimonium clause recites that: “ The undersigned, governor of the State of Alabama, has hereto set his hand and caused to be affixed hereto the seal of the State of Alabama,” etc., and the seal of the State was affixed. It was the obligation of the State, and not of the pei’son whose name was signed to it, and the addition of his name of office to his signature was unnecessary. Delivery of bonds indorsed in this form would have been a good delivery under the contract with the defendant. But the plaintiffs neither owned or had in his possession these or any bonds called for by his contract with the defendant, at the time the plaintiffs, pursuant to the arrangement between the parties, was to deliver them. They at that time did not deliver or offer to deliver them. They were not in a situation to perform their contract, and the defendant on his part was ready to take the bonds. It was no excuse for the failure of the plaintiffs to perform, that Koenig had not performed his contract, or that the plaintiffs declined to receive the bonds *396 tendered by him under a mistake of law. The defendant was no longer bound, unless he waived his rights or extended the time of performance by the plaintiffs. It is quite evident, that at the time of this first interview between the parties, they both understood that bonds signed by the governor, without his official designation, would not be a good delivery under the contract. The defendant, as he testifies, left the plaintiffs’ office and returned within a short time, and then informed the plaintiffs that they could deliver the bonds for him signed by Smith, as governor, to Meserole & Trumbull,' brokers, up to a quarter past two o’clock of that day, who would receive and pay for them. The plaintiffs, before the time limited, offered to Meserole & Trumbull bonds of the requisite amount, but on twelve of them the indorsements was signed by Smith, without the addition of his name of office. M. & T. refused to accept them on the ground that they were not authorized by the defendant to accept bonds so indorsed. The bonds thus tendered to M. & T. were owned by Koenig, who allowed the plaintiffs to take them to tender to the brokers, under an agreement with the plaintiffs, that if the bonds were accepted by Meserole & Trumbull, the plaintiffs would accept them as a good deli very on their contract with Koenig. Immediately upon the refusal of M. & T. to accept them, they were returned to Koenig, who held them for some days when the plaintiffs took and paid for them. The plaintiffs cannot avail themselves of the tender made to Meserole & Trumbull as a performance of their contract with the defendant. When the permission was given to the plaintiffs to deliver bonds on the defendant’s account to M. & T., the plaintiffs were in default, and if they acted upon it they were bound by the condition imposed, and a tender of bonds of a different description from those specified in the permission would be unavailing and nugatory. It would not be sufficient to tender other indorsed bonds, although of the same value, and creating the same obligation. Moreover, M. & T. had only a special authority which was known to' *397 the plaintiffs, and a tender to them of bonds which they were not authorized to accept, was not equivalent to a tender to the defendant. At no time during the day the contract matured, did the plaintiffs own the bonds with which to fulfill their contract. They were intrusted by Koenig with bonds for the special purpose of tendering to Meserole & Trumbull, and as soon as the tender was refused they were handed back to the owner. The evidence, on the part of the plaintiffs in respect to the arrangement for the delivery of the bonds to Meserole & Trumbull, tends to show that there was no restriction as to the particular form of indorsement, and that the bonds offered were such as the defendant agreed to accept. But we are of opinion that the question whether the tender to Meserole & Trumbull was made in accordance with the arrangement between the parties, was one of fact and should have been submitted to the jury, and that for this reason the judge erred in directing a verdict. The judgment should be reversed and a new trial ordered, costs to abide event. All concur. Judgment reversed.