Charles J. Perry and Another, Doing Business as C. J. Perry & Son, Respondents, v. Russell Frazer Wire Company, Appellant

Charles J. Perry and Another, Doing Business as C. J. Perry & Son, Respondents, v. Russell Frazer Wire Company, Appellant. [MAJORITY] Plaintiffs sued the buyer for damages for canceling an executory contract after part performance. The complaint states in substance that defendant refused to permit plaintiffs to perform any more work because it refused to pay the agreed prices, that plaintiffs have performed and are ready and willing to carry out the conditions of the contract, and have not done anything to breach it or to interfere with its performance. One basis for the demurrer is that the complaint did not allege that plaintiffs had “ duly ” performed under section 533 of the Code of Civil Procedure. Where the buyer cancels the contract, or otherwise prevents full performance, an averment of due performance is bad. (Oakley v. Morton, 11 N. Y. 25.) The refusal to go on, or the explanation why there has not been full performance, should be set forth, so as to admit evidence of the buyer’s breach, or his waiver. (Weeks v. O’Brien, 141 N. Y. 199.) This complaint, therefore, was entirely correct. The order of the County Court of Bangs county denying defendant’s motion for judgment on the pleadings is, therefore, affirmed, with ten dollars costs and disbursements. Jenks, P. J., Mills, Putnam, Blaekmar and Kelly, JJ., concur.