Opinion
March, 1899.
William S. Haskell, for appellant.
Benjamin F. Feiner, for respondents.
The plaintiffs are merchant tailors in this city. The defendant placed an order with them for a suit of clothes which they agreed to make for him for the sum of $28. Upon delivery the defendant rejected the trousers for the reason that they were not properly made, and refused to pay for the suit. Several unsuccessful attempts were made by the plaintiffs to remedy the defects. Nevertheless, this action was brought to recover the entire contract price. In the course of the trial it was both admitted and proven that while the coat and vest were unobjectionable the trousers were improperly tailored. These facts appearing, the justice, on the consent of both parties, suspended the trial for one week to enable the plaintiffs to complete the suit by furnishing to the defendant in the interim a proper pair of trousers. When the trial was resumed the garment had not been made or delivered. The justice in his opinion finding from the testimony as a matter of fact that the omission was chargeable to the plaintiffs, deducted the proven value of the trousers from the agreed price for the whole suit and rendered judgment against the defendant for the value of the coat and vest. This was error; the judgment should have been in favor of the defendant. The contract between the parties was entire, the defendant's promise to pay was conditional upon complete performance on the part of the plaintiffs of their part of the agreement (Ming v. Corbin, 142 N.Y. 334), the defendant was, therefore, entitled to a whole suit of clothes according to his order before he could be required to make any payment. The agreement between the parties was for a complete suit of clothes and not for an individual garment, and it was incumbent on the plaintiffs to show full performance on their part before they became entitled to any part of the price. Husted v. Craig, 36 N.Y. 221; Mount v. Lyon, 49 id. 552; Baker v. Higgins, 21 id. 397.
The defendant in nowise impaired his right by consenting to the suspension of the trial in order to enable the plaintiffs to furnish him with a satisfactory pair of trousers. The effect of this consent merely was to afford the plaintiffs opportunity to complete the contract according to its original terms. It did not relieve the plaintiffs of any obligation resting upon them.
It is contended by the plaintiffs that the agreement of the parties in open court, in the course of the trial, was an accord and satisfaction of whatever claim the defendant had, and that his refusal to perform excused performance on their part. In order to sustain this proposition the plaintiffs assume, contrary to the findings of the trial justice, that the defendant was at fault. The judgment must be reversed.
FREEDMAN, P.J., and MacLEAN, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.