Hand v. Belcher Mosaic Glass Co.

McAdam, C. J. The stipulation for the payment of $220 in trade means that the defendant was to give the plaintiff goods to the amount stated, at market prices, and, upon refusal to deliver the goods, the defendant became liable to pay as damages $220. 2 Wait, Act. & Def. 455; and see Pinney v. Gleason, 5 Wend. 393; Rockwell v. Rockwell, 4 Hill, 164; Fletcher v. Derrickson, 3 Bosw. 181. The action being founded on the breach, the averment of refusal to deliver was a material allegation, which the defendant was bound to deny, or, in default, be regarded as having admitted the fact to be as charged. Code, § 522; Gould, Pl. 141. Not having denied the allegations of refusal, the defendant was not at liberty to prove anything inconsistent with the admission. Tell v. Beyer, 38 N. Y. 161; Fleischmann v. Stern, 90 N. Y. 110. If there was but a qualified refusal to deliver on the part of the defendant, it might conscientiously have denied the unqualified refusal alleged, or have pleaded facts showing that the refusal was not unqualified, but upon conditions which the law regarded as an excuse for non-compliance at the time. This was not done. The allegation that the defendant was “ready and willing” to furnish goods to the plaintiff is unavailing, in view of the admission that it “refused” to deliver. The allegation in the answer of readiness to deliver is not equivalent to performance in the face of the conceded fact of re 739 fusai, which is conclusive evidence of the breach that gives the right of action. The answer created no issue, and the direction to find for the plaintiff was right. It follows that the motion for a new trial must be denied.