Locklin v. Moore

By the Court Miller, P. J. The principle is well settled that where a contract is made, by which the sum fixed is to be paid at a particular time and at a place named, no demand is necessary, and the commencement of the action is a sufficient demand. If the debtor was ready to pay at the time and place named, he may plead that, as he would a tender in bar of damages and costs, and bring the money into court. (Wolcott v. Van Santvoord, 17 Johns., 248; Caldwell v. Cassidy, 8 Cow., 271; Haxtun v. Bishop; 3 Wend., 13; Troy City Bank v. Grant, Hill. & Den., Supp., 119; Hill v. Place, 36 How., 26.) Applying this principle to the contract between the parties to this action, it is quite obvious that the referee was right in his conclusions of law, and that the plaintiff was entitled to recover. The courts have placed a construction upon the effect of an agreement of this character as to promissory notes, and there is no good reason why it should not apply to a case like the one at bar. The authorities cited are 1 [309] decisive of the question raised, and there is no error of the referee in this respect. I am also of the opinion that there is no foundation for the position, that because the plaintiff has taken issue and gone to trial upon the agreement alleged in the answer, the j udgment must be for the defendant, even although the money was not brought into court at the time of answering. The answer of the defendant made an issue without any reply of the plaintiff; and even if it sets up an imperfect defence, it by no means follows that the plaintiff is precluded from a recovery. It avers that the defendant was ready and willing to pay for the goods at the place named, but does not set up a tender of money, or allege its payment into court, or make an offer to pay it. It does not present a case where a tender is properly pleaded, and the money not paid into court. (Sheriden v. Smith, 2 Hill, 538.) As no tender was pleaded, the authorities relied upon have no application. (Roosevelt v. N. Y. and H. R. R. Co., 45 Barb., 554; Simpson v. French, 25 How., 464.) The referee committed no error in directing a judgment for the price agreed upon for the goods purchased, and for the value of the goods sold on commission. Ho demand was necessary for the price of the goods actually sold, as we have already seen; and it is sufficiently apparent from the testimony and the finding of the referee, that those sold by the defendant for a commission were disposed of before the commencement of the action. The judgment must be affirmed with costs. Judgment affirmed.