majority">By the Court.

The personal representatives of Stephen D. Conover would have been entitled to enforce all his rights and remedies under the contract in question. It is therefore legally assignable.

The notice given by the plaintiff to the defendant, on the 5th October, 1857, that he was ready to pay for the potatoes on delivery, according to the terms of the contract, was a sufficient notification of readiness on his part.

The statement of the defendant at that time, when fully informed- of the assignment of the contract, that he would not deliver the potatoes, and that he had sold them to other parties, superseded the necessity for any demand for delivery, after the potatoes were harvested, if the jury considered the *333fact of the refusal to perform to be established. There was some contradictory evidence on this point, but it must be now held that it was decided by the jury.

[New York General Term,May 6, 1861.

The defendant should have notified the plaintiff of the time when' he would be prepared to deliver the potatoes at the place agreed on, and have required him to be prepared to receive and pay for them. Had the plaintiff neglected to comply, the defendant would then have been absolved from performance.

The defendant having sold and delivered the potatoes to other parties, without such notification to the plaintiff, and the jury .having found for the plaintiff generally, such sale must now be held to have beén made in pursuance of the intention manifested by the refusal to deliver on the fifth of October, or to recognize the plaintiff in the transaction.

On the question of damages, the evidence established that the defendant had not harvested more than 150 bushels of potatoes suitable for delivery under the contract, or that the other contracting party could have been required to receive. The answer admits, however, 200 bushels.

A new trial is granted unless the plaintiff stipulate to reduce the verdict to §300, within ten days; and in the event that such stipulation is filed, then the judgment is affirmed.

Clerke, Leonard and Suther land, Justices.]

Citation profile

How this case has been treated — in progress