Statement of the Case.

SIMEON FITCH ET AL., APPELLANTS, V. ZACHARIAH DEDERICK, RESPONDENT.

Evidence-Presumption—Knowledge of Contract-Liability of Third Party.

Mere knowledge by the Defendant, that a party had agreed with the Plaintiff to procure his, Defendant's, notes in payment for property purchased by such party, imposes no liability upon the Defendant.

APPEAL from the Supreme Court, Third District. The action was brought to recover the price of stone which the Plaintiffs, in their complaint, alleged that they had sold to the Defendant. The answer denied such purchase by Defendant. Upon the trial it appeared that one Patrick O'Donnell had two several contracts for the grading and paving of certain streets in Brooklyn; that in the execution of such contracts it became necessary for him to procure a quantity of stone; that the Defendant had had dealings with him, loaning him his notes and money, for which he had taken various securities, among which were orders for money becoming due for work done upon the said contracts; that O'Donnell applied to the Defendant for aid in procuring the stone for a portion of the work. Evidence was given tending to show that the Defendant authorized O'Donnell to purchase twenty-five hundred dollars' worth of stone on his credit, which was controverted by evidence introduced by Defendant. It appeared that O'Donnell agreed with Plaintiffs to give him the Defendant's notes in payment for the stone delivered to him. The Plaintiffs proved that the Defendant had loaned O'Donnell some twelve thousand dollars in money, for which the latter was indebted to the former, at the time the stone was delivered. This proof was properly excepted to by the Defendant. The Judge charged the jury that if the Defendant knew that his notes were promised to Fitch, and that the sale was made on the faith of receiving those notes, that would make the sale on that credit, and he would be

Opinion by GROVER, J.

responsible. To this portion of the charge the Defendant's counsel excepted. The Judge further charged the jury that, if the Defendant had any fund, or the control of a fund, which was to pay for those stone, and he knew the seller was to rely on that fund, he is responsible. To this portion of the charge the Defendant's counsel excepted. The jury found a verdict for the Plaintiffs, upon which judgment was rendered, which was reversed, upon appeal, by the General Term, and a new trial ordered; from which judgment the Plaintiffs appeal to this Court.

J. H. Reynolds for Appellants.

M. Hand for Respondent.

GROVER J.-The evidence excepted to by the Defendant was inadmissible. It had no legitimate bearing upon any issue in the The issue was whether the Defendant, by any agreement or act of his, had become liable to the Plaintiffs for the price of the stone in question.

case.

The fact that he had, before the delivery of the stone, loaned O'Donnell money, for which he was indebted to him at that time, had no tendency to show any agreement to pay for the stone, nor any liability therefor, upon any of the grounds claimed by the Plaintiffs. The learned Judge erred in charging the jury that, if O'Donnell agreed to pay for the stone in the notes of the Defendant, and the sale was made on the faith of receiving such notes, that would make the Defendant liable therefor. The charge assumes that the Plaintiffs sold the stone to O'Donnell, and that the latter agreed to pay the Plaintiffs therefor in the notes of the Defendant; and instructs the jury that if the Defendant knew that such an agreement was made, and the stone delivered by the Plaintiffs, upon the expectation of receiving such notes, the Defendant was liable therefor. This might all be true, and yet the Defendant may never have agreed with O'Donnell, or the Plaintiffs, to give his notes for any such purpose. Mere knowledge by the Defendant that O'Donnell had agreed with the Plaintiffs to give his notes in payment for property purchased by O'Donnell, imposed no liability upon the Defendant.

Opinion by GROVER, J.

It is not necessary to examine the other portion of the charge excepted to. The order appealed from must be affirmed, and judgment rendered against the Plaintiff.

All concur.

Judgment absolute for Defendant.

JOEL TIFFANY,

State Reporter.

Opinion by DAVIES, Ch.J.

NICHOLAS E. PAINE, RESPONDENT, v. THOMAS BROWN, APPELLANT.

Condition precedent-Tender, not necessary when it is an idle ceremony-Con

tract-Construction.

The law does not impose upon a party the duty of performing an idle ceremony. When it appears in evidence from the party claiming that a tender should have been made to him, that he would not have accepted it if made, to insist that a tender should have been made by the other party is to insist upon an idle ceremony, which the law will not require.

T. R. Strong for Appellant.

Geo. C. Munger for Respondent.

DAVIES, CH. J.-The Plaintiff, as assignee of one Calvin T. Chamberlain, brings this action to recover the sum of $2,000, being the amount of the first payment to be made upon a contract for the sale by Chamberlain, and the purchase by the Defendant, of one-fifth of the Indiana Central Canal.

The contract was in these words: "Memorandum of an agreement. C. T. Chamberlain agrees to sell, and convey by deed of release, to Thomas Brown, one-fifth part of the Central Canal in Indiana, north of Morgan county, for the sum of ten thousand dollars; and the said Brown agrees to purchase the same, and pay that sum therefor; two thousand dollars are to be paid in July next, and the balance in one and two years, with interest from the first of May next.

"This contract is to be put in form in course of this month, at Rochester, N. Y. If Joseph Robinson does not take a fifth of said canal, in pursuance of his verbal agreement, said Brown is to have one quarter of said canal at same rate, to wit: for $12,500, and payments as above.

"C. T. CHAMBERLAIN. [L. S.] "THOMAS BROWN.

'Indianapolis, March 12, 1859."

[L. S.]

The first payment called for by said contract not having been

Opinion by DAVIES, Ch.J.

made, this action was brought in November, 1859, to recover the same, with interest thereon from May 1, 1859.

The jury found a verdict for Plaintiff, and the exceptions taken were directed to be heard, in the first instance, at the General Term, which gave judgment for the Plaintiff; and the Defendant. now appeals to this Court.

When the Plaintiff rested his case the Defendant moved for a non-suit upon these grounds:

1. The contract in suit appears upon its face to be incomplete, and does not purport to be a contract of purchase and sale between the parties, but an agreement for a contract.

2. The Plaintiff has not shown any performance, or offer to perform, within the time limited by the agreement, or at any other time.

3. The deed tendered or offered in July is not in accordance with the contract. It varies from the contract in the description of the property, and in the estate which it purports to convey.

The Court charged the jury, amongst other things, that the contract of the 12th of March, 1859, was complete in itself, and that it was not necessary for the Plaintiff to tender, or offer to enter into, any further contract, or tender any conveyance within. the time specified in the contract for putting the same in form at Rochester, N. Y., and that it was sufficient if he tendered a conveyance in the month of July following, when he required payment of the $2,000, to be paid in that month. To this part of the charge the Defendant's counsel excepted.

The Judge also charged the jury that, inasmuch as the Defendant did not, when the deed was offered to him in July, insist upon a more complete contract, he must be deemed to have waived it; and it must be considered that he was satisfied with the contract as it was.

To this part of the charge the Defendant's counsel excepted.

The Judge also charged the jury that the tender in July, as proved in the case, was a sufficient tender; and to this part of the charge the Defendant also excepted.

In the view we take of this contract, no obligation was im