Opinion
October Term, 1897.
John Brooks Leavitt, for the appellant.
Charles De Hart Brower, for the respondent.
The appellant contends that the plaintiff's assignor did not perform the contract upon his part within a reasonable time. The contract was made on the 9th day of December, 1890, and the book was delivered to the defendants on or about the 7th day of October, 1891. Whether the book was thus delivered within a reasonable time depends upon circumstances not disclosed by the complaint. We cannot say, as matter of law, that the book should have been completed and published in less than ten months. For aught that appears, that length of time may well have been occupied in its preparation, even with the fullest diligence. In other words, no presumption can be indulged in upon the naked averments of the complaint. The plaintiff in effect avers performance on his part when he avers that the advertisement was duly inserted in the book and that the book was duly published and a specimen copy duly delivered in accordance with the contract. If any presumption is to be indulged in, it is that the defendants accepted and retained the book without complaint as to the length of time which was occupied in its preparation. In this view of the case the plaintiff has substantially averred performance. Both sides agree that the contract is analogous to a contract payable in goods. It is in effect a contract whereby, for a good consideration, one party agrees to perform for the other party work of the value of $240. The full consideration was given when the plaintiff's assignor delivered the book to the defendants. Upon the receipt by the defendants of that book they became bound to perform such work in their line as might be offered to them, and to deduct the sum specified in the contract, to wit, $240, from the price payable for such work.
It is an erroneous view of the bargain that the plaintiff's assignor, or the plaintiff himself, was bound to proffer such work to the defendants within a reasonable time after the making of the contract, or, at least, after delivery of the book. Upon the receipt of the consideration specified in the contract, the defendants became bound, upon demand, to do what they had engaged to do. There was no limit as to the time when the plaintiff's assignor might make the demand, except, of course, the limit prescribed by the Statute of Limitations.
There is nothing in the appellant's remaining point, that the defendants' refusal to perform related only to the plaintiff as assignee of the contract, and not to the assignor. The contract was assignable in the ordinary way, and was in no sense limited to the personality of the assignor. The assignee took under his assignment the same rights as the assignor, and a refusal to perform as to him was as much a breach of the contract on the defendants' part as would have been a refusal to perform as to the assignor.
We think the demurrer was properly overruled, and that the interlocutory judgment should be affirmed, with costs, and the appeal, so far as it seeks to review the intermediate order, should be dismissed.
VAN BRUNT, P.J., RUMSEY, WILLIAMS and PATTERSON, JJ., concurred.
Judgment affirmed with costs, and appeal, so far as it seeks to review the intermediate order, dismissed.