Opinion
May Term, 1903.
Charles I. Webster, for the appellant.
John F. Manson [ George M. True with him on the brief], for the respondent.
The defendant concedes that he received the whisky from the plaintiff, and agreed to pay one-half the purchase price thereof, viz., thirty dollars and ninety-four cents in horse hire. At that time he was keeping a livery stable in Rensselaer, which is a railroad center; and the plaintiff's agent, from time to time, needed the use of a horse and carriage in his business of selling whisky through that neighborhood. Inasmuch as no time was limited by the terms of the bargain in which the horse hire should be furnished, nor prices agreed upon, nor place specified, the law infers that it was to be furnished and received within a reasonable time, and at the place where the bargain was made and the defendant then kept his livery stable, and at the usual and reasonable prices charged for similar services. It does not appear that any demand for such hire had been made by the plaintiff up to the time of the defendant's removal from Rensselaer, but the decision of the justice is equivalent to a finding by him that a reasonable time to furnish the same had not then expired; and such conclusion should not be reversed on appeal. The defendant then, while still obligated to furnish the horse hire at Rensselaer, removed himself and his stable to a place eleven miles distant, and four miles distant from any railroad station, thus practically disabling himself from performing the contract on his part.
There is no pretense that he still maintained the ability to perform at Rensselaer, because, after the removal, when discussing the subject of the plaintiff's claim with the plaintiff's attorney before this action was commenced, the defendant said he was willing to meet the plaintiff's agent on notice at Troy, but he would not do so for the same prices that he did at Rensselaer. Thus he sought to substitute a new arrangement for the contract in question, and evidently one that the plaintiff was under no obligation to accept.
By thus voluntarily putting it out of his power to pay for the whisky as he had agreed to do, and broken his contract in such respect, a demand by the plaintiff for the horse hire at Rensselaer was not necessary ( Crist v. Armour, 34 Barb. 378; 9 Am. Eng. Ency. of Law [2d ed.], 210), and the defendant became liable to pay the amount still owing plaintiff, in money. ( New York News Publishing Co. v. Steamship Co., 148 N.Y. 39.)
The defendant on the trial testified: "I know that the agent of the plaintiff knew three months before I moved that I was going to move, that he knew when he sold me the whiskey that I was not going to stay in the place where I then was;" and from this he argues that no implication arises that the contract was to be performed in Rensselaer.
But the defendant does not testify that anything was said between the parties on that subject, nor that the agent knew where he was going, nor when he intended to move. Such a statement is altogether too indefinite to warrant the inference that they contracted with reference to the fact that the defendant was going to Eagle Mills, and that the performance must be had there instead of at Rensselaer; and unless it raises that inference, it is insufficient to affect the plaintiff's right to demand performance at the place where they were then contracting.
Moreover, if it be conceded that such evidence is in effect that the agent knew he was going to Eagle Mills, and contracted with reference to his furnishing the horse hire there, the justice was fully justified in disbelieving so incredible a story. I conclude that the decision of the justice was correct. Concededly the defendant still owed twenty-four dollars and ninety-four cents upon the whisky which had been delivered to him. He had put it out of his power to pay for it in "horse hire," as contemplated by the contract, and so he was liable to pay for it in cash.
The County Court had no authority to order a new trial, unless the judgment in the court below was against the weight of evidence. (See Code Civ. Proc. § 3063.) Evidently such judgment is not against the weight of evidence, but, on the contrary, is supported by it.
I conclude that the judgment of the County Court should be reversed, and that of the justice affirmed.
All concurred; KELLOGG, J., in result.
Judgment of the County Court reversed and that of the Justice's Court affirmed, with costs to the appellant in the County Court and in this court.