Howard Hendrickson, Appellant, v. Peter J. Callan, Respondent

Howard Hendrickson, Appellant, v. Peter J. Callan, Respondent. Third Department, November 15, 1911. Contract — agreement to purchase stock within a year — necessity of tender — obligations of parties. • Where each of two parties agrees- to do- a certain thing at the same time, the thing to be done by one to be the consideration for that to be done by the other, neither party can maintain an action on the contract until he has put the other in default by a tender of performance on his part-before the expiration of the contract. Where, however, defendant agreed in consideration of plaintiff’s subscription for $3,000 worth of bonds, “ to purchase fifteen hundred dollars of such subscription * * within one year ” from a certain date, plaintiff is not required to make a tender of the $1,600 worth of bonds within the year in order to charge defendant on the contract. A tender or offer of the bonds within the year is not a condition precedent to plaintiff’s right to.recover, and it is enough for him to show that he tendered the securities before the commencement of the action.- When plaintiff had subscribed for $3,000 worth of the bonds defendant was obliged under the contract to take half of them and to pay for them within the time stated. * . Appeal by the plaintiff, Howard Hendrickson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany-on the 9th day of January, 1911, upon the decision of the court rendered after a trial at the Albany Trial Term, both parties, having moved for the direction of a verdict at the close of the case. The action was brought to recover the sum of $1,500 claimed to be payable on an agreement of which the following is a copy: “In consideration-of Howard Hendrickson subscribing for three thousand dollars of bonds of the Hygienic Ice & Refrigerating Co., of Albany, N. Y., I agree to purchase fifteen hundred dollars of .such subscription from him within one- year from January 1, 1909. Such bonds' so purchased shall carry -with it such capital stock as may accompany such bonds. “Dated, Dec. 24, 1908. “P. J. CALLAH, . “HOWARD HENDRICKSON.” The court found that the defendant requested the plaintiff to subscribe for a portion of the bonds; that the defendant entered into the agreement in order to induce the plaintiff to increase his subscription to $3,000; that immediately after its execution, and relying thereupon, the plaintiff subscribed said syndicate agreement and thereby agreed to take $3,000 par value of said bonds; that during the year 1909 the plaintiff was compelled to and did pay, by reason of his subscription, $3,'000 for said bonds and received $3,000 par value of bonds and $3,000 par value of stock of said company. The court also found: “ That the only tender made by plaintiff to defendant of said bonds and stock, or any portion thereof, was made on January 3rd, 1910,” and “that defendant refused to accgpt. said bonds and stock so tendered to him by plaintiff on January 3rd, 1910, on the ground that such tender was not made within one year from January 1st, 1909.” A. Page Smith, for the appellant. Neile F. Towner, for the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: It is not claimed that the agreement in question is void for want of mutuality, for fraud, mistake or want of consideration, and it is undisputed that the defendant actually received _ the consideration for his promise at the time of making- it. The only defense relied upon by the defendant to escape from the-plain obligation assumed by him under the agreement is that no tender was made by the plaintiff of the bonds and stock within one year from January 1, 1909. It is quite obvious, we think, that the cases cited by the defendant in support of this contention are distinguishable from this case. They are cases in which the promises were mutual and concurrent, where two parties agreed to do each a certain thing on the same day, and the thing to be done by one was the consideration for that which was to be done by the other, and the court held that, because concurrent action was required, neither party could sue at law" until he had put the other in default by a tender of performance on his part before the expiration of the. contract. (Rutty v. Con solidated F. J. Co., 52 Hun, 492; Taylor v. Blair, 59 id. 347; Lester v. Jewett, 11 N. Y. 453; Page v. Shainwald, 169 id. 246.) The contract in the present case did not require contemporaneous performance. The promise of the defendant was in consideration of an act done by the plaintiff at the time of making the promise and in return therefor. There was no provision for simultaneous acts or for the delivery of the bonds and stock on a particular day. The subscription by the plaintiff, which created a legal liability on his part to pay for the bonds so to be taken, was all that he was bound to do under the agreement. There was then left only the outstanding liability of defendant, which is to be construed as an express promise to take the bonds and stock and to pay for them within the time mentioned. Under such circumstances it is clear that the obligation continued after the expiration of the year; that an offer or tender of the bonds and stocks within the year was not a condition precedent, according to the terms of the agreement upon which the right of the plaintiff to recover depends; and that it was enough to show that he put the defendant in default by tendering to him the bonds and stock before the commencement of the action. We are of the opinion, therefore, that the judgment must be reversed and a new trial granted, with costs to appellant to abide event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.