Porter v. Rose

Spencer, J., delivered- the opinion of the court. On the trial, the defendant’s counsel moved for a nonsuit, on the ground that the undertakings were dependent, and that the plaintiff was bound to-show a readiness to- pay. The judge overruled this objection, deciding, that the plaintiff was not bound to show either a readiness to pay, or the actual payment for what had been delivered. , _z The defendant has moved in arrest of judgment, and for a new trial. In both counts of the declaration, it is stated, that the whiskey was to be delivered at Buffalo; and it is averred in both counts, that the plaintiff hath, at all times, been ready and willing to receive the said whiskey, and pay for the same, at the rate and price.aforesaid, to wit, at Buffalo aforesaid, And although it is not averred that the plaintiff was' ready, &c, at the [212] time stipulated for the delivery, the declaration conforms to the precedent. (2 Chitty's Pl. 99.) An averment that he was at all times ready, necessarily relates to the time of delivery. There is no averment that the defendant did not present the receipts, and that the plaintiff was ready to pay, on their presentation. This was not necessary, because non constat, that receipts were given, and it was unnecessary to give them, when the delivery was. to the principal himself* consequently, the motion in arrest of judgment cannot be sustained, As to the motion for a new trial, it is fully settled in a variety of modern cases, which have disregarded the artificial and subtle distinctions of former times, and looked to the real intention and meaning; of the parties, that where two acts aré to be done at the same time, as when the one agrees to sell and deliver, and the other agrees to receive and pay, an averment by the purchaser, in case he sues for the non-delivery, of a readiness and willingness to pay, is indispensably necessary ; and that, consequently, the readiness and willingness to pay, is matter to be proved on his part, whether the other party was at the place, ready to deliver the thing contracted for or pot. (7 T. R. 125. Morton v. Lamb. 1 East, 203. Rawson and Minns v. Johnson. 2 Bos. and Pul. 447. Waterhouse v. Skinner. 1 Saund. 320. note 4. 5 Johns. Rep. 179. West v. Emmons, and 2 Johns. Rep. 207. Green v. Reynolds.) It is impossible to distinguish thjs case from those cited, £ut on the ground that this, contract provides for the delivery of the whiskey■ at Buffalo, to the plaintiff, ins agent, clerk, or-issuing commissary, and obliges the plaintiff to pay for the whiskey, on the production of receipts. From these stipulations, it might have been contended, in case of a delivery of the whiskey to the plaintifPs agent, &c. that the payment on |he delivery was dispensed with. .The averments in the declaration, preclude the plaintiff from taking this ground; he fias averred a readiness and willingness to pay for the whiskey at Buffalo, and cannot, contrary to the averment, set up that he was not at Buffalo, or excuse himself from a readiness and willingness to pay there. Thé provision relative to a payment on the production of receipts, extends only to a delivery to the plaintiff’s agent; for it would be absurd to. require a receipt from the plaintiff himself, as evidence of the delivery to himself. "iJndpr the ave^niepts ip the declaration, we are. to intend that [213] the plaintiff was at Buffalo at the times specified "for the delivery, and that he was then and there ready and willing to reeeive and pay. His ability and readiness to pay, became then a matter which he was bound to prove, whether, the defendant was then ready to deliver or not. Motion for a new trial granted; the co"sts to abide the event of the suit,