author: Jones, J.

text:
    THEODOSIUS STRANG, Plaintiff and Respondent, v. THE NEW YORK RUBBER COMPANY, Defendants and Appellants.
    The fee of lands taken under that part of the Act of 1813, which relates to the opening and laying out streets (Laws of 1813, vol. 2, p. 408), as amended by Act of 1818 (Laws of 1818, p. 196), does not pass to the Corporation until an acceptance of the, land by some affirmative act by the Corporation, unless the Corporation neglects so to accept during the fifteen months, succeeding the confirmation of the report of the commissioner. In case the Corporation so neglects, the fee will not pass until at least the expiration of said fifteen months.
    Before Monell, Jones, and Fithian, JJ.
    [Decided March 12, 1869.]
    This case was tried before Mr. Justice Barbour and a jury.
    . On the 6th of February, 1866, plaintiff leased to defendant the store 103 Liberty street, for two years and nine months, from May 1, 1866, at the annual rent of $1,000, payable quarterly The defendant entered into possession of the premises and used and occupied them until after February 1,1868.
    The defendant having neglected to pay the quarter’s rent which became due February 1, 1868, plaintiff brought this action to recover it.
    The defense is that the Mayor, Aldermen, and Commonalty of the City and County of New York instituted a proceeding in the Supreme Court, under that part of the act of 1813 entitled “An act to reduce several laws, relating particularly to the City of New York, into one act,” which refer to the opening and .laying out streets (Laws of 1813, vol. 2, p. 408), and the various acts amendatory thereof, for the extension of Church street, from the southerly side of Fulton street to Morris street; that the premises in question were included in the lands taken by the said proceeding for said extension; and that the report of the commissioners of estimate and assessment in that proceeding were finally confirmed by the Supreme Court on the 30th of December, 1867.
    That part of the report of said commissioners which relates to the premises in question, is in the words and figures following, to wit:
    “And we, the said commissioners, do further report, that all that certain lot, piece, or parcel of land, situate, lying, and being in the City of New York, and next hereinafter described, will be required to be taken for the extension of Church street, from the southerly side of Fulton street to Morris street, as aforesaid, that is to say, all that certain lot, piece, or parcel of land, situate, lying, and being in the City of New York, and bounded, described, and containing as follows, to wit:
    “ Beginning at a point on the northerly line or side of Liberty street, distant three hundred and twenty-three feet one and one half inches westerly from the westerly line or side of Broadway; and running thence westerly along the northerly line or side of Liberty street twenty-six feet and nine inches to the easterly line or side of lot No. 84 on the Commissioners’ Damage Map; thence northerly along the easterly line or side of lot No. 54 on said map one hundred and seventeen feet and eight inches to the southerly line or side of lot No. 57 on said map; thence easterly along the southerly line or side of lots Nos. 57 and 56 on said map twenty-eight feet and three inches to the westerly line or side of lot No. 52 on said map; and thence southerly along said last-mentioned line one hundred and eighteen feet and nine inches to the point or place of beginning.
    “And we, the said commissioners, do further report that, as far as we could ascertain, Theodosius Strang is seized in fee' of, in, and to the last above-described piece or parcel of land; that the same is known by the number Fifty-three on the Commissioners’ Damage Map hereinbefore mentioned. And we, the said commissioners, do further report, that we have estimated the loss and damage of the said Theodosius Strang, as the owner of said piece or parcel of land, last above described, by and in consequence of the extension of Church street, from the southerly side of Fulton street to Morris street, as aforesaid, and of the owner relinquishing the said last above mentioned and described piece or parcel of land, with the improvements thereon for that purpose and removing the same therefrom, and of the taking of the said piece or parcel of land for the purpose aforesaid, to amount to the sum of thirty-seven thousand dollars.
    “And we do further report, that any buildings now situated on said piece or parcel of land will be required to be removed therefrom.
    “And we do further report, that the premises last above-described and mentioned are subject to a mortgage for the sum of twenty-four thousand dollars, now held and owned by the heirs of Charles Adriance.
    “And we do further report, that the said premises are also subject to a mortgage for the sum of sixteen thousand dollars, now held and owned by the Bank for Savings.
    “And we do further report, that the New York Rubber Company now hold and own a lease upon and affecting the premises last above described and mentioned, and that we do estimate and assess the loss and damage of the New York Rubber Company, the said-lessees of said premises, by and in consequence of the said intended improvement, to amount to the sum of one thousand dollars.
    “And we do further report, that the Central Railroad Company of blew Jersey also now hold and own a lease upon or affecting said premises, and that we do estimate and assess the loss and damage of the Central Railroad Company of blew Jersey, said lessees, by and in consequence of the said intended improvement, to amount to the sum of five thousand dollars.”
    It was admitted that the Corporation had not paid the award to the plaintiff, and, though requested, had refused to do so up to the time of trial, and that the Common Council had taken no action whatever, in reference to said extension of Church street, since said 30th day of December, 1867, when said report was confirmed.
    It was admitted that the defendants had continued in occupation of the premises mentioned in the complaint down to the time of trial.
    It was admitted that if the $1,750 rent claimed in the summons was apportioned from November 1 to December 30 (the date of the confirmation of the report), the amount
    woxrld be......................................$1,133 33
    And that interest from that time to the time of trial.. 35 85
    Making...................................$1,169 18
    And that the apportionment for the period from the confirmation of the report to the 1st of February,
    1868, would be..'......................$566 67
    Interest on which to trial is..........13 96
    Making................................... 580 63
    And that the sum of the two totals is..............$1,749 81
    For which plaintiff asked a verdict.
    The Court directed a verdict to be rendered for the plaintiff for that amount, to which defendants’ counsel duly excepted. And thereupon the jury, pursuant to such direction of the Court, found a verdict for the plaintiff for $1,749.81.
    Judgment was entered on said verdict, and the defendant appealed therefrom to the General Term.
    Defendants’ counsel claimed as matter of law that, by the taking aforesaid, the fee simple of the whole of the premises, being the lands and premises mentioned and described in the lease, and all the right, title, and interest of the plaintiff to the rents, issues, and profits thereof, became absolutely vested in the said Mayor, Aldermen, and Commonalty of the City of New York, and that on the final confirmation of the report of the said commissioners the lease became void, and the estate thereby created ceased, and all the estate, right, title, and interest of the plaintiff to said lands and premises, and the reversion thereof, and to the rents and profits of the same, were absolutely transferred to, and became vested in, the said Mayor, Aldermen, and Commonalty of the City of New York, and that they have ever since been, and still are, seized in fee of all the said lands, and that the said commissioners awarded a just compensation to the plaintiff for the said lands and premises, so taken as aforesaid, and described in said lease.

      Mr. B. F. Lee for appellants.
    The covenant to pay rent became absolutely void.on the final confirmation of the report of the commissioners, on December 30,1867, by the clear and explicit terms of the act in relation to street openings, Laws of 1813, ch. 86, sec. 181 (Valentine’s Laws, p. 1201), which provides that “ in all cases where the whole of any lot or parcel of land, or other premises under lease or other contract, shall be taken for any of the purposes aforesaid (i. e., streets, &c.), all the covenants, contracts, and engagements between landlord and tenant or any other contracting parties, touching the same or any part thereof, shall, upon the confirmation of such report in the premises as shall be confirmed by the court aforesaid, respectively cease, determine, and he absolutely discharged.”
    Independently of the above clauses of the act of 1813, the right of the plaintiff to maintain an action to recover the rent was taken away by the decree confirming the report of the commissioners, on December 30, 1867. The plaintiff’s title to the premises absolutely ceased, and the entire fee simple vested in the Mayor, &c., of New York, on the confirmation of said report." That was final and conclusive “ upon the owners, lessees, persons,” &c., mentioned in the report, including the parties to this action (Laws of 1813, ch. 86, sec. 178; Valentine’s Laws, p. 1198; Hoffman’s Treatise on the Corporation, p. 289).
    The whole title to the reversion having become vested in the corporation, the right of the plaintiff to the rent went with the title. The mere transfer of the title to the reversion carried with it the rent (1 Washburne on Real Prop., *p. 337).
    No action whatever, after the termination of the proceeding, is needed to vest the title to the premises in the City. On the confirmation of the report, it becomes at once seized of the whole title, and “ may immediately, at any time or times thereafter, take possession of the same, or any part or parts thereof, without any suit or proceeding at law for that purpose” (Laws of 1813, chap. 86, sec. 178, Val. Laws, p. 1198).
    The time at which the title vests in the corporation cannot be affected by the provisions of the constitution forbidding the taking of private property for public use without compensation. It is not necessary that property so taken should be actually paid for before the appropriation of the lands. It is enough that the owner has an adequate remedy by which he can obtain compensation through the medium of the courts of justice (Court of Errors, 1837, Bloodgood v. Mohawk and Hudson R. R.R. Co., 18 Wend., 9).

      Mr. John E. Parsons for respondent.
    By the terms of the report, the plaintiff remained the owner of the building, or store, for the use of which the rent is due. That building has a value. The effect of the report is that, for relinquishing the land taken, the plaintiff receives a certain award in money, and the building, whatever may be its value, which he is to remove." The retention to him, therefore, of the building, is a substantial part of the compensation he receives for, and without which he could not be deprived of, the land. The rent in question is really due for the use of the building. The land, incumbered by a building upon it, could not be separately occupied, and so produces no part of the rent.
    The fee of the land has not yet passed from the plaintiff»
    Under the act of 1813, the city can only acquire by hostile proceedings, as here, that land or interest in land which is necessary for a public use, and can only take it for that purpose. The city has not yet paid. The act of 1813, sec. 183 (Davies’ Laws, p. 538) provides that within four months after the confirmation of the report the City shall pay.
    While it may be safely conceded, so far as this cause is concerned, that the provision made for future payment relieves the act of the charge of not providing compensation to the owner for the land to he taken, and so that it does not necessarily violate the constitutional provision, it is insisted that the act under the constitution can have no such effect as before payment to pass a title in fee, with right to future rents, until the land shall be put to the public use (Baker v. Johnson, 2 Hill, 342; Rexford v. Knight, 1 Kern., 308, 314; People v. Hayden, 6 Hill, 359,; Smith v. Hellmer, 7 Barb., 416, 426). The effect of the act of 1818 is to postpone the acquisition by the city of the land during this period of suspension.
    Any other construction would permit the owner to he deprived of fifteen months’ use of his land, which of itself is property, both without compensation and for a private use, in direct violation of the constitution (Const. of 1822, art. 7, sec. 7; Const. of 1846) art. 1, § 6.
    Liability to pay follows from the acquisition of title, and the only consistent interpretation which can be given to the act of 1818 is that for fifteen months the city shall not be compelled • to-take and pay for the land.
    Until the expiration of that period or actual possession by the city, the owner therefore remains entitled to possession of the land and to its rents, issues, and profits.
   By the Court:

Jones, J.

The act of 1813 provides (R. L. of 1813, vol. 2, p. 414) that, on the confirmation of the report of the commissioners of estimate and assessment, “ the Mayor, Aldermen, and Commonalty of the City of New York shall become and be seized in fee of all the land, hereditaments, tenements, and premises described in such report, that shall or maybe so acquired for the purpose of opening, laying out, and forming, extending, enlarging, or otherwise improving the streets or avenues so to be opened, laid out, and formed, extended, enlarged, or improved, the same to be appropriated, converted, and used to and for such purposes accordingly. And thereupon, the said Mayor, Aldermen, and Commonalty, or any person or persons acting under their authority, may immediately, or at any time thereafter, take possession of the same, or any part thereof, without any suit or proceeding at law for that purpose. In trust, nevertheless, that the same be appropriated and kept open for or as part of a public street, avenue, square, or place forever, in like manner as the other public streets, avenues, squares, and places are, and of right ought to be.”

It is clear, from this, that the fee is passed simply to feed the specific trust, and that the Corporation takes the fee simply as trustee, upon and for that trust.

An acceptance of the trust is always a condition precedent to the passing of the legal title which is designed to feed it.

Such acceptance may be either expressed or implied, and if one be under legal obligation to accept, his acceptance would be implied from that fact.

Under the law of 1813, an acceptance of the trust, at the expiration of four months from the date of the confimation of the report, and perhaps at the date of the report, would be implied from the fact of their petitioning for the opening, &c., of the streets, &c., and from the obligation imposed on them by that law of paying for the land taken at the expiration of that four months.

But the act of 1818 (Laws of 1818, p. 196) appears to me to allow the Corporation at least fifteen months in which to accept the trust. That act is as follows:

“ That the Mayor, Aldermen, and Commonalty of the City of New York may suspend the opening, extending, enlarging, altering, and improving of any street, road, avenue, or public place which may be ordered to be opened, extended, enlarged, or altered in the .said city, in pursuance of the provisions of the act entitled ‘An act to reduce several laws relating particularly to the City of New York into one act,’ for such time or times as they shall think proper, not exceeding fifteen months in the whole, after the confirmation of the report of the commissioners of estimate and assessment; and farther, that the said Mayor, Aldermen, and Commonalty shall not be required to pay any sums of money which may be awarded to any person on account of the opening, extending, enlarging, altering, and improving of any such street, road, avenue, or public place until the expiration of four months after the expiration of the time or times which may be appointed by them, as aforesaid, for carrying the said improvements into effect.”

The trust upon which the land is to be received is to open, &c., the contemplated street, &c., and keep it open for and as a public street. The act of 1818 expressly authorizes the Corporation to defer entering on this street for a period not exceedinfifteen months from the confirmation of the report, and does not require the land to be paid for until after the expiration of four months from the time appointed by them for entering on the trust. There can be no acceptance prior to the expiration of that time, therefore, implied from the petitioning for the opening of the street or'the obligation to pay for the land. Indeed, the act of act of 1818 contemplates an express acceptance by an affirmative act if the Corporation intend to accept at a period prior to the expiration of the fifteen months, for in that event it makes the time of payment date from the term fixed by it by an affirmative act for entering on the performance of its duty.

I am satisfied,that this is the proper construction to be given to the provisions in question, contained in the acts of 1813 and 1818.

Since, then, the Corporation did not accept the trust during the eighteen months, the fee did not pass during that period.

This view gains great strength from the fact that, except upon' this construction, the act of 1818 would be unconstitutional, as taking private property for public use without just compensation, for it would result in taking from an owner of property the use of it for the period of eighteen months, without giving him any - compensation ' therefor, because - the period during which the Corporation might, under the act of 1818, delay the opening,&c., and the payment for the land, being indefinite, the commissioners would be unable to adjust the damages for the deprivation of the use of the property for that uncertain period and no substitute is provided for a compensation for such deprivation, in the way of interest on the amount awarded for the value of the land. The.primary rule that the language of the legislature is, if possible, to be interpreted in such manner as to make it consistent with the constitution (Bloodgood v. M. & H. R.R. Co., 18 W., p. 19), is applicable to the provisions in question,, and calls for the construction I have given to them.

A further suggestion may be made.

For a long time it was a mooted point whether an act which authorized the taking of private property for public use, before actual payment of a just compensation therefor, was constitutional.

It was, however, finally settled that if certain and ample provision he made by law, so that the owner can coerce payment of the compensation adjusted and awarded to him, through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay, the constitutional requirement for the making of just compensation is sufficiently satisfied (People v. Hayden, 6 Hill, p. 361).

This is substituting means for enforcing payment in place of actual payment.

Before such means can operate as a substitute, they must become perfected and ripened so as-to vest in the owner a present right of enforcement; until that time he has neither actual compensation by payment, nor the substitute for it, a right to enforce payment. On the principle, then, that a right to enforce payment is equivalent (so far as the constitutional requirement is concerned) to actual payment, payment is not made until such right has matured and become operative, and consequently the lands do not pass until that event occurs. It follows that, as, under the act of 1818, the right to enforce payment does not mature until four months after the expiration of the time which the Corporation may appoint for opening, &c., or until nineteen months after the confirmation of the report, the lands do not pass until one or the other of those events occur

It is certainly sufficiently onerous to hold by construction that one’s land may be taken without his consent," and he be paid therefor by a right of action resulting perhaps in litigation, without pushing the construction further, and holding that he may be deprived of his property for a longer or shorter period, without even a right of action for compensation.

In cases of great public emergency, it may be that private property may be taken, not only without making immediate compensation, but also without even providing a means whereby such compensation may be enforced. To what extent such doctrine may extend, and to what cases it is applicable, it is not now material to inquire, as the present is clearly not a case of great "public emergency.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Jones, J. Monell, J.

license: Public Domain

text:
    THE NEW HAVEN AND NORTHAMPTON COMPANY, Plaintiffs and Respondents, v. EDWARD A. QUINTARD et al., Defendants and Appellants.
    Where, in a contract made by a vendor at A. to ship goods from B. to C., no time is mentioned within which the shipment is to be made, the law implies a contract to make the shipment within a reasonable time.
    This reasonable time is to be determined on a consideration of all those facts which both parties had in view in making the contract.
    As a general rule in such a case, a reasonable time is that which is sufficient to transmit notice of the contract from A. to -B., and to complete a shipment commenced immediately on the receipt of such notice.
    Special facts, either known, or presumed to he known, to both parties, will modify these rules.
    Hence, obstructions of a railroad over which the vendor expected to receive the goods, by freshets or rebel raids, or a delay of that railroad in delivering the goods, or an appropriation by that railroad of the goods to its own use, not being shown affirmatively to have been known to the vendee at the time of the making the contract, cannot be considered in determining the question as to what should be deemed a reasonable time for its performance, they not being presumed to be within the vendee’s knowledge. The eases of Wibert v. Erie Railroad Company (12 N. Y., 251), Cross v. Beard (26 N. Y., 85), Cooker v. Franklin Co. (3 Sumn., 530), are not in conflict.
    But a fi-eshet, being an act of God, will excuse non-performance if it render performance impossible.
    It must, however, be pleaded as an affirmative defense.
    It must also be proved to have rendered performance impossible.
    And at the time of making the contract must have been unknown to the vendor.
    Where the contract is for the vendor to ship goods from one place to the vendee at another place, no time or place being prescribed for payment, in such case the shipment is to be precedent to the payment.
    Discussion as to what acts and matters will operate as a waiver of performance, or of a breach.
    Under section 158 of the Stamp Act of June 30, 1864, the omission to affix a proper stamp does not avoid an instrument, unless such omission was with intent to evade the provisions of the act.
    Therefore one who seeks to exclude from being given in evidence an instrument by reason of its invalidity in not being properly stamped must show affirmatively that the omission was with intent to evade the provisions of the act.
    But, if the burden of proving the absence of such intent was on the party offering the instrument, still, if it be received by the Court under the general objection that the want of a proper stamp renders it invalid, a judgment will not be reversed by reason of such reception.
    As the defect arising from the want of a proper stamp could have been remedied by evidence as to the intent of the omission, the objection,' to be tenable (in case of reception), must be placed on the ground of the absence of such evidence. Per Jones, J.
    An unstamped contract is not invalid, unless the omission to stamp was with the intent to evade the provisions of the act of Congress, and the burden of proving such intent is upon the party objecting. Per concurring opinion of Moneli, J.
    Before Monell, Jones, and Fithian, JJ.

      [Decided March 12, 1869.]
    This was an action to recover damages for alleged refusal by defendants to deliver coal sold.
    The case was tried before Chief-Justice Robertson and a jury.
    On the 23d of April, 1864, the defendants offered in writing to ship to the plaintiffs, at Hew Haven, two cargoes of Hampshire coal, at $6.25 per ton, at Baltimore.
    The agreement was signed by the defendants, and stamped, and various letters were introduced on the trial binding the defendants and demanding the coal. The offer was not accepted in writing until November, 1864.
    Meantime, frequent freshets and numerous raids by the rebel forces, “ and the loss of horses and locomotives by guerilla bands ” and other causes, had produced a great scarcity of the coal, and a corresponding advance in price.
    On the 15th of December, 1864, plaintiffs applied to defendants for an order for the coal, which was given, but no coal was delivered on the order.
    In January, 1865, the plaintiffs’ agent made a demand for the coal, at New York, upon the defendant Quintard.
    Yeamans, plaintiffs’ agent, testified that he did not make any formal tender of money, but stated that they were ready to pay for the coal when delivered.
    This was denied by Mr. Quintard, who testified that they never declined to deliver the coal, whenever the plaintiffs would send for it, or they, (the defendants) could get a vessel in which to send it.
    The Court charged the jury that the defendants were bound to ship the coal on vessels within reasonable time, and that no unusual cause of delay arising after the contract should extend that time, and that the plaintiffs had performed their contract if they were ready and willing, and offered to pay for and receive the coal, and demanded it. and defendants failed within a reasonable time to deliver it; and that if the plaintiffs were entitled to recover, they were entitled to recover the difference between the price of the coal according to the contract, and the highest price between the time of the contract and the commencement of the suit. The defendants excepted.
    The jury found a verdict for the plaintiffs.
    Judgment was ordered on said verdict', and the defendant appealed to the general term.

      Mr. Hamilton Odell for appellants.
    The Court erred in admitting in evidence the defendants’ letter of April 23, and Teamans’ letters, as proof of the agreement alleged in the complaint, because, not being stamped as required by act of Congress, they were invalid as agreements and incompetent as evidence (Beebe v. Hutton, 47 Barb., 183; Meyers v. Smith, 48 Barb., 636; Hoppock v. Stone, 50 Barb., 524).
    In contracts for the purchase and sale of goods, where no time of payment is agreed upon, delivery and payment are concurrent acts, and neither party can maintain an action for non-performance by the other, without showing either a performance or an offer or tender of performance on his part. Mere readiness to perform is not sufficient (Fickett v. Brice, 22 How., 194; Frey v. Johnson, id., 316; Flanagan v. Demarest, 3 Hob., 173; Kelley v. Upton, 5 Duer, 336; Smith v. Wright, 1 Abb., 243; Lester v. Jewett, 11 N. Y., 453 ; Dunham v. Pettee, 8 N. Y., 508 ; Tipton v. Feitner, 20 N. Y., 423 ; Baker v. Higgins, 21 N. Y., 397; Crist v. Armour, 34 Barb., 378 ; Aikin v. Davis, 45 Barb., 44; Stevenson v. Maxwell, 2 N. Y., 409; Morris v. Sliter, 1 Denio, 59; Williams v. Healy, 3 Denio, 363).
    The proof failed to show any offer or tender upon plaintiffs’ part.

      The verdict of the jury, finding, under the charge of the Court) that plaintiffs notified defendants of their readiness to pay, is contrary to the evidence and should he set aside.
    The Court erred in its definition of “ reasonable time,” within which the plaintiffs were required to perform.
    There was no refusal by the defendants to deliver the coal.
    The testimony shows a continued willingness and effort on their part to fulfil their agreement. It shows an undertaking by plaintiffs in December to furnish vessels if defendants would give an order for the coal, and the giving of an order by defendants. It also shows that the failure to obtain the coal under the order was owing solely to the scarcity of vessels and the rate of freight. to which plaintiffs limited their agents at Baltimore. It also shows a demand by Yeamans in January (immediately preceding the commencement of this action), but no refusal.
    The Court erred in its charge upon the question of' damages, and the damages allowed by the jury were excessive.
    By the law of this Court and the ruling at the' trial, no valid agreement existed between these parties until ¡November, when the plaintiffs, in writing, accepted the offer of April 23.
    The case shows that at that time, and subsequently, the price of coal did not .exceed ten dollars and fifty cents per ton.
    Damages were allowed under the direction of the Court, for the difference between the contract price and eleven dollars "per ton, which was the price in October, before the agreement was concluded between the parties.

      Mr. John L. Cadwalader for respondents.
    The exception that the Court erred in admitting in evidence the contract dated April 23, 1864, was frivolous.
    Defendants had a right to stamp it. The stamp act of July 1, 1862, see. 94, provides, that “ any person who shall sign, or for whose use and benefit the same shall be made and signed or. issued,” shall stamp it (U. S. Statutes at Large, vol. xii., p. 415).
    There was no intention to evade the statute. Without that the want of a stamp does not invalidate (Vorebeck v. Roe, 50 Barb., 302).
    The point that the agreement was within the statutes of fraud, and void, was formerly decided by this Court at General Term (January, 1868), and cannot be raised here.
    In judging of reasonable time, the jury were to consider the position of the parties when the contract was made, and the ordinary time contemplated in contracts of this nature in general, as distinguished from events happening afterward (Ellis v. Thomson, 3 M. & W., 445 ; Farmers’ Loan, &c., v. Hunt, 16 Barb., 521).
    A party making a purchase of this kind has a right to sell or to count upon delivery as a certainty. It is well settled that impossibility in carrying out a contract is no defence (Bute v. Thomson, 13 M. & W., 487; Hills v. Sughrue, 15 M. & W., 261; Addison on Cont., 2d Am. ed., p. 1130).
    The defendants were not bound to tender the actual money, but a readiness, an ability, and offer to perform, coupled with a demand of performance, were sufficient (Coonley v. Anderson, 1 Hill, 519 ; Vail v. Rice, 5 N. Y. R., 155 ; Bronson v. Wiman, 4 Seld., 182; Kingston v. Preston, 2 Doug., 690; Topping v. Root, 4 Con., 404; Porter v. Rose, 12 John., 209 ; Lester v. Jewett, 11 N. Y., 453 ; Dana v. King., 2 Pick., 156).
    The acts were not simultaneous; the defendants were bound to ship, to do something, before the plaintiffs’ liability to pay occurred, and until they did ship, and we knew the amount of coal, we could not by any possibility make a tender.
    Besides, the defendants refused, in substance, to deliver, and a tender would have been nugatory (Paine v. Brown, 4 Trans. App., 198; Nicholas v. Rensselaer Ins. Co., 28 Wend., 125; Stone v. Sprague, 20 Barb., 509 ; Adams v. Wadhams, 40 Barb., 225 ; Williams v. Sherman, 48 ib., 402).
    The rule of damages was correct. In an action brought without unreasonable delay, for damages for the non-performance of a contract, the rule is the highest value of the property from the lapse of a" reasonable time to the time of trial (Suydam v. Jenkins, 3 Sand., 614; West v. Wentworth, 3 Cow., 82; Dey v. Dox, 9 Wend., 129 ; Potter v. Hopkins, 25 Wend., 41; Young v. Willett, 8 Bosw., 486; Scott v. Rogers, 31 N. Y. R., 676 ; Romaine v. Van Allen, 26 N. Y. R., 309; Burton v. Fisk, 30 N. Y. R., 166).
    But even if the rule is otherwise, it is only ground for a reduction of the damages.
    The jury gave damages at the rate of $4.75 per ton on 500 tons, as two cargoes, taking $11 as the highest price, and interest from January, 1865, when the last demand was made of the defendants.
    The case shows, that the price of the coal in January, and for two months before, was $10.50; in any event, therefore, the judgment could only be reduced $250.
   By the Court :

Jones, J.

When no time is specified for the performance of a contract, its legal effect is that the parties have contracted for its performance in a reasonable time.

What the reasonable time thus contracted for is, must be determined upon a consideration of all those facts which both parties had in view in making the contract.

There are some general rules which have a controlling influence in determining what this reasonable time is in those cases where they are applicable. Thus, one is presumed not to require more than a business day to pay a sum of money which he has contracted to payso one who sells an article is presumed to have it on hand, ready for delivery; so, again, one who contracts to perform an act within a reasonable time is presumed to have the means at hand for immediately proceeding on its performance.

Evidence showing the existence of facts known, or presumed to be known, to both parties, and that the parties contracted in reference thereto, will modify these rules in accordance with said facts; but unless so modified, the parties will be presumed to have contracted in reference to these rules.

To apply these rules to the present case : The contract was made on the 17th November, 1864, in the city of New York, and was to ship, at Baltimore or Georgetown, two cargoes of coal to New Haven, at $6.25 per ton at Baltimore or Georgetown. Hnder this contract the defendants, according to the above rules, must be presumed to have had on hand, ready for shipment, the requisite amount of coal, and to have had facilities for immediately commencing the shipment.

Only so much time, then, can be allowed them for the performance of their contract as was requisite to send notice of the contract to Baltimore or Georgetown, and to complete a shipment of coal on hand at either of those places, commenced immediately on the receipt of said notice at said places.

It would perhaps be superfluous to require proof to show that a month would be an unreasonable time to take for performing these acts.

But there is evidence showing that four and a half cargoes can be shipped per month (fol. 78); that four cargoes had been shipped in December, 1864, one of them to New Haven ; and thus establishing, under the above rules, that the reasonable time within which the contract should have been performed expired at least as early as December 17, 1864.

It is, however, insisted that there is evidence showing facts modifying the above rules and extending the time for performance. The facts thus relied on are: (1) obstruction of the railroad by freshets; (2) raids by rebel forces obstructing the railroad; (3) delay of the railroad in delivering the coal, and its appropriation to its own use of a considerable quantity of the coal they should have delivered.

None of these matters were shown to have been mentioned at the time the contract was entered into, nor is it shown that at that time they were known to the plaintiff, or its agent, nor can the plaintiff or its agent be presumed to have known them.

The contract therefore was not entered into with reference to any of these matters; and they cannot therefore.be considered in determining the question as to what should be deemed a reasonable time for its performance (Ellis v. Thompson, 3 Mees. & Weld., 445; Farmers’ Loan, and Trust Co. v. Hane, 16 Barb., cited, p. 521).

The common-carrier cases cited by respondent’s counsel do not conflict with the foregoing views. They hold that where no time is specified within which transportation is to be made, the contract of the carrier is to transport with reasonable diligence. Of course such a contract is not broken if a delay occur not within power of the carrier to control, because such a delay does not show a want of reasonable diligence.

The case of Wibert v. Erie Railroad Company (12 N. Y., 251) does not maintain the doctrine that the fact of the delay being occasioned by an accumulation of previously received freight, will excuse the carriers in cases not falling within the statute mentioned in the opinion, or within the principle of that statute.

Whether in other cases such fact would be an excuse may be regarded as not yet determined in this State, and it is unnecessary now to determine it.

In the demurrage case the Court held that where there was no express contract as to the time in which the vessel should discharge cargo, the law would imply a contract to discharge her in the usual and customary time for unloading such cargo ; that such .custom required the vessel to await her turn; and that, as the defendant in the case- then on argument was the owner of the dock, and there was an unusual accumulation of vessels at his dock with cargoes for himself, he should be allowed to show that such accumulation was without his fault, and consequent upon risks to which navigation is frequently exposed. Indeed, the opinion seems to indicate that it would lie in the plaintiff to show that the accumulation was by fault of the defendant (Cross v. Beard, 26 N. Y., 85).

The case of Cocker v. Franklin County (3 Sumn., 530) is a report of a nisi prius trial had in a sister State.

Assuming the charge of the learned Judge in that case to lay down a doctrine opposed to that of the charge in this case, still it would not be an authority to control our decision in its favor as against the charge under review. It possesses no greater weight than the present charge. The fact that it is prior in point of time, and is printed in a volume of reports, does not invest it with any greater weight.

But it does not lay down any different doctrine. It is true there are contained in the charge some general expressions which, taken by themselves, would give color to the respondent’s propositions. But these remarks immediately follow the citation of the case of Ellis v. Thompson (3 Mees. & Weld., 445). And the instruction given to the jury of the doctrine established by that case, viz., that the question of reasonable time was to be determined by a consideration of those facts bearing on it which were proved, or presumed by law, to be known to both contracting parties. Then these general remarks follow, instructing the jury what facts, if known to both parties, would bear on the question of reasonable time.

Taking the whole charge together, this is the correct exposition of the meaning of the general expressions in question ; and in this respect the.charge does not militate against the doctrine advanced in this opinion.

The other cases cited need no especial reference. They contain no doctrine at variance with the above views.

But it is further urged that the freshet was the act of God ; and, as I understand it, that consequently the time 'within which the contract should otherwise be performed was thereby extended ; and the case of Wolfe v. Howe (20 N. Y., 197) is cited. Under the legal signification of the term “ act of God ” (Niblo v. Binnse, 44 Barb., cited, p. 62) a freshet may well be considered as an act of God.

An act of God, however, does not change the contract between the parties ; but when it renders performance impossible it affords an excuse for non-performance. To entitle a defendant to the benefit of such excuse he must plead it as an affirmative defence. This the defendant in the present ease has omitted to do.

But further than this: the only freshet complained of occurred in the spring of 1864, long before the contract in question was entered into, and then caused an interruption of but ten days (fob 114). There is no evidence tending to show that this freshet interfered with the delivery of the coal, otherwise than by causing a deficiency of supply to meet the contracts then on hand, and consequently to delay their execution, and by reason thereof the execution of others coming after them. This is too remote to have any effect on the present contract. A defendant cannot be allowed to evade the requirements of his contract by seeking for an excuse for delay in its execution at such a remote period of time prior to the making of the contract. Besides, the defendants must have known of the effect of this freshet at the time they made the contract, while the plaintiff was in ignorance of it; and they must be deemed to have made the contract to ship in a reasonable time, without any reference to the effect of the freshet.

There was considerable evidence on the subject of scarcity of vessels to receive shipments of coal. However that fact may be, it cannot, for the reasons given in respect to the raids,, be considered in determining the question of reasonable time..

Other of the appellants’ points raise the question whether shipment and payment were not to be concurrent acts, and to be performed simultaneously.

I think shipment was to precede payment.

The contract called for a shipment by defendants to plaintiff at Philadelphia. This shows that it was not in the contemplation of the parties that plaintiff should be at either Baltimore or Georgetown to receive the coal; if it was not contemplated that he should be there to receive; it could not have been contemplated that he should be there to pay or receipt. Shipment and payment, then, were not to be concurrent acts. Payment was not to be a precedent act, for the whole evidence shows that the non-shipment was never sought to be excused on the ground that precedent payment had not been made.

It follows, as the proof is clear that no shipment was ever made, and no valid excuse is shown for not making it, that defendants are liable for the breach of the contract without any tender or offer on plaintiff’s part (Morris v. Sliter, 1 Denio, 59).

This view disposes of the second, third, fourth, fifth, and sixth points, except so much of point six as refers to defendant’s continued willingness to perform.

Upon these principles, the clear and uncontradicted evidence shows that the reasonable time for the performance of the contract by the defendants expired at least as early as the 15tli of December, 1864, and at that time a breach of their contract on the part of the defendants.

This necessarily disposes of the objection arising out of plaintiff’s offer to furnish vessels to receive the cargoes, and the limit as to the rate to be paid for carrying the freight placed by it on the ship brokers it employed; for these matters, occurring after breach, were not sufficient to constitute a waiver thereof, or to relieve the defendants from their liability already accrued.

But there are further reasons why this offer and limit cannot defeat plaintiff’s recovery.

The offer to furnish vessels was voluntary and without consideration, and therefore could not operate to change the rights of the parties under the contract. Nor will an offer or endeavor by one party to the contract to aid the other in performing his contract, and thus speed its fulfilment, absolve the other from performance.

If both parties regard the offer as giving to the one the exclusive charge of providing something which the other was bound to provide, and they so act upon it, this would form an excuse for a delay in performance occasioned by a non-provision of the thing to be furnished.

Such offer, however, might at any time be withdrawn, and then the parties would be remitted to their rights under the contract, with such excuse for intermediate delay as might be furnished by the existence of the offer.

But in this case the parties did not regard the offer as one which gave the exclusive charge of procuring a vessel to the plaintiff, nor did they act on it as such. The defendant’s shipping agent swears that he told the ship brokers employed by plaintiff that he would procure a vessel himself if he could (fol. 112). Again, he says, “ I offered to ship up to two hundred and fifty tons whenever I could ship the coal with certainty and Bose & Lyon or myself could find a vessel of suitable character ” (fol. 119).

The offer was simply to aid in finding a vessel, and was so understood by the parties, and, consequently, did not relieve defendants of their obligation to ship in a reasonable time.

Further, defendants’ shipping agent placed restrictions on the ship brokers as to the character of the vessel to be furnished. This, except on the basis that the offer was a mere voluntary one of assistance, he had no right to do, and so the placing of such restrictions destroyed the effect of the offer.

Again, the shipping agent, not being then able to furnish the coal, undertook to notify the ship brokers at the earliest moment when he could furnish the coal (fol. 112). He never gave any such notification, therefore the non-shipment is to be ascribed rather to the absence of coal than to the non-providing a vessel.

The limit as to the rate to be paid by the ship brokers for carrying the freight was imposed by the plaintiff on its agents to govern their action. It did not assume to act on the obligation of the defendants.

Their obligation was to ship at the ruling rates. A limitation not addressed to them, but to a third party, wholly unconnected with and acting independently of them, for his guidance, cannot affect their obligation.

This disposes of so much of the sixth point not before disposed of; also of the first, second, and third subdivisions of point seven;. also-of the second and third subdivisions of point ten.

The testimony of Small as to the price of coal at Baltimore was properly admitted; although he made no sales himself personally, yet his testimony shows that he had knowledge, from being on the spot and being cognizant of sales made by others.

This disposes of the eighth point.

The discrepancy between the evidence of Small and that of Lyon as to the size of cargo which Small offered to furnish, was, in the views above taken, wholly immaterial, and consequently any erroneous assumption on that point would not call for a reversal; and, for the same reason, the exclusion of the letter of Rose & Lyon, even if erroneous, does not affect the judgment. The same remark applies to the point respecting the demand of Teamans prior to November.

It is also said that plaintiffs sought to obtain a larger cargo than they were entitled to. I find no evidence sustaining this. They were entitled to two cargoes of two hundred and fifty tons each. I do not perceive .that they ever sought to obtain more than five hundred tons. Certainly after the great delay in furnishing the coal they were entitled to have as much of five hundred tons loaded in one vessel as the draft of water at the dock where the coal was to be furnished, and the accommodation of the dock, would permit. This disposes of all the seventh point not before disposed of, and also of the first subdivision of the tenth. As to the charge, at folio 175, leaving it to the jury to determine whether the evidence of Quintard did not show a refusal to perform, I think the charge was more favorable to the defendant than he had a right to.

Quintard’s testimony is that he informed the plaintiff’s agent, Avhen the offer and demand were made by him, that the coal was ready at any time when plaintiff would send a vessel for it, or the defendants could get one to send it.

Such were not the teams of the contract. The contract was for a shipment within a a-easonable time. It is held above that what is a reasonable time does not depend on the difficulty of procuring vessels; that by the conta’act defendants undertook to have the means for shipment on hand ready to commence the shipment as soon as the order could in due time be transmitted to their agent. The offer, then, to pea-form upon conditions not provided for by the contract was a a-efusal to perform aceordhag to its requia-ements. Again, it is above held that befoa-e this offer was made a ba-eaeh of the contract had occura-ed; an offer to perform after breach will not relieve from liability therefoa-.

This disposes of all of the tenth point not before disposed of.

Under the law as settled by this Court, the written offer of April 23,1864, signed by the defendants, and the letter of November 17,1864, signed by plaintiff’s agent, referring to the offer of April 23, and treating it as a subsisting contract, constituted a valid contract under the Statute of Frauds.

Another objection urged, is that the agreement was not properly stamped under the United States stamp act.

The stamp act applicable to this case is that of June 30, 1864, which took effect August, 1864, and the point arises under the' 158th section of that act, which is as follows :

Sec. 158. And be it further enacted, that any person or persons who shall make, sign, or issue, or who shall cause to be ‘1 - ,¡ made, signed, or issued, any instrument, document, or paper of any kind,or description whatsoever, or shall accept or pay, or cause to be accepted or paid, any bill of exchange, draft or order, or promissory note for the payment of money, without the same being duly stamped or having thereon an adhesive stamp for denoting the duty chargeable thereon, with intent to evade the provisions of this aet, shall, for every such offence, forfeit the sum of two hundred dollars; and such instrument, document, or paper, bill, draft or order, or note, shall be deemed invalid and of no effect.”

The point is not well taken, for two reasons:

1. There is no evidence that the omission to affix the proper stamp was with intent to evade the provisions of the aet. It is necessary that the omission should be with such intent m order to invalidate the instrument; and the burden of proving such intent lies in the party seeking to invalidate the defendant in this case.

2. Even if the burden of proof was upon the plaintiff, yet the defendant cannot now take advantage of the defect of" proof; for on his motion for a nonsuit he did not call the attention of. the plaintiff to such defect. If he had, it might have been supplied. He claimed-, on the motion for a nonsuit, that-the bare omission of the stamp of itself invalidated the agreement. This was his only claim, and in this he was in error.

This disposes of the first point.

But I think the ninth point is well taken, and the rule of damages adopted was erroneous. The proper rule is the difference between the contract price and the market price on the day of breach. This contract did not become valid and binding until November 17,1864; until that day there was no legal obligation on the defendants to perform. The reasonable time within which they should perform must date from the day on which they first became liable to perform. Plaintiff was allowed to recover at a rate which ruled prior to the contract becoming binding, which was higher than that which ruled afterward. From the time the contract became binding down to a date long subsequent to the breach, the market rate had remained uniform a $10.50 per ton (fol. 60).

The judgment should be reduced by deducting $250, with interest thereon.

If the plaintiff consent to make such reduction, the judgment is affirmed without costs of appeal to either party. If he refuse, judgment is reversed, and anew trial is ordered, with costs of appeal to the appellant to abide the event.

Monell, J.

(concurring). One of the questions in this case is whether the contract was invalid by reason of not being stamped, as required by the 158th section of the act of Congress of June 30,1864. That section provides that any person who shall make any instrument, &c., without the same being, duly stamped, or having thereupon an adhesive stamp for denoting the duty chargeable thereon, with intent to evade the provisions of this act” shall forfeit, &c., and such instrument “ shall he deemed invalid and of no effectP

The instruments which formed the contract in this case were six several letters, written by the parties respectively, commencing on the 23d of April and ending on the 13th of December, 1864; and the plaintiff proved that in April, 1865, after the commencement of the action, they placed the required revenue stamp upon one of the letters addressed to them.by the defendants, which letter contained the offer of the defendants to sell to the plaintiff the coal in question.

The form of the contract in this dase illustrates one of the difficulties in the practical working of the Revenue Stamp Act. Where an entire agreement is included in. one instrument, signed by the respective parties, the letter of the act can be complied with; but where the agreement consists of separate instruments, each signed by one party only, at a different time, or, as in the case before us, of six letters, written at intervals during a period of eight months, and where no contract is formed until the last instrument is signed and delivered,' or the last letter is sent and received, it is difficult to determine when, or upon which of the several instruments, the revenue stamp shall be placed. I do not understand' the act to require that each of the several parts of the agreement shall be stamped, but merely that each sheet or piece of paper upon which it is written shall be stamped; and yet in no other way could there have been in this case a compliance with the statute.

The language of the act is, that “ any person who shall make, sign, or issue* * * * any instrument, document, or paper, of any kind or description whatsoever,” shall forfeit, &c. This language would indicate that each of the separate parts of an instrument, when signed, shall be stamped; so that a Written offer to sell must be stamped at the time it is written or sent, although it has not been and may never be accepted, and until acceptance it is of no force or effect. But there are other parts of the act which, in effect, define the meaning of any “ instrument, document, or paper.”

The stamp required is one “ denoting the duty chargeable thereon,” and the several kinds of instruments, &c., are designated, .and the duty prescribed. Thus, among others, “ agreement, contract, or appraisement” requires, for each sheet or piece of. paper on which the same is written, a stamp of five cents, A contract, therefore, is an “instrument” affected by the section of the act before referred to, and although, when made, each sheet or piece of paper on which it is written must be stamped, yet the act nowhere requires such stamp to be affixed while the contract is merely inchoate. Otherwise it would be necessary to affix a stamp upon each of the incipient writings when written, and to cancel them, as required by the act. Yet such incipient writings, with cancelled stamps thereon, may not become a part of any contract, as where a written offer to sell is not accepted or agreed to. The sensible construction of the act would seem to be, that a contract when formed shall be stamped upon each sheet with the required stamp. Of course the act relates to written instruments only. k. parol contract is not within its provisions.

The act declares that an instrument not so stamped shall be deemed invalid and of no effect, and as it is required to be so stamped at the time the instrument is made, the invalidity relates to the time of making. It is therefore, at least, very questionable whether a subsequent affixing of a stamp would render a contract valid, unless it was affixed in the manner provided by the amendment of the 158th section, by the act of March 3, 1865. I do not, however, propose to examine that question, for it seems to me were clear that the contract in this case was not invalid and of no effect, unless the omission to affix a proper stamp thereon was with intent to evade the provisions of the act.

Mor is it important to consider the amendment of July 13, 1866, which provides that no instrument required to be stamped, which has been signed or issued without being stamped, shall be admitted in evidence, until a stamp shall have been affixed thereto. In this ease the stamp was affixed before trial. Besides, the amendment referred to merely excludes the instrument from being read in evidence, but does not affect its validity.

This brings me to the principal question, namely, upon whom the burden lies of shoAving such intent.

As respects the penalty, the act casts the burden upon the party seeking its remission to prowe there was no intent to evade the law; but the causes which render a contract invalid are left to be established in such manner and by such party as, according to the rules of pleading or of evidence, is usual.

A party objecting, as an unvarying rule, is deemed to hold the affirmative, and must furnish the necessary evidence to predicate the objection. Therefore, if it is objected that an instrument is void by reason of its not being stamped, the objector must show that the omission of the stamp was vyith intent to evade the revenue law.

The section is very clear on this subject. Any person who ' •shall make any instrument, and shall, with intent to evade the law, fail to affix thereon a proper' stamp, shall forfeit, &c., and such instrument shall be invalid. The fraudulent intent is • the offence, and if nohe exist there is no penalty.

. In -all cases of penalty or of crime the law presumes inno- ' cence, and guilt must be established to secure conviction.. The ¡Revenue Act is a penal statute, and if an action were necessary to obtain the fine, no one will doubt that it would be necessary for ■the government to show a fraudulent intent to repel the presumption of innocence. ¡No such action, however, is required, the government being authorized to collect the penalty in the manner that other revenue is collected.

There are two quite different effects resulting from omitting to affix a revenue stamp upon a contract or other instrument. One inures ,to the government, and the other to individuals. But they do not arise from the same cause. The forfeiture or penalty which belongs to the government is incurred whenever a person makes an instrument and omits to stamp it, and the penalty may be, as before stated, collected without action. But if such person seek a remission of the forfeiture, he must satisfy the collector of his innocence of any design to defraud the revenue. Where the effect, however, of omitting the stamp inures to individuals, the omission must be connected with a fraudulent design) which the party seeking to avail himself of the effect must establish by competent proof.

The revenue act is like our statute concerning fraudulent conVeyanc.es, which, renders void every conveyance made with the intent to hinder, delay, or defraud creditors. To avoid a conveyance under that statute, the onus is upon the creditor to establish the fraudulent intent. Indeed, under any statute which, for stated reasons, renders a contract or other instrument void, the attacking party holds and must prove the affirmative. A note void for usury, or under the gaming laws, or for an insufficient consideration, or contracts contra bonos mores, must be shown to be void for these reasons, by the party setting up the objection. Tet in those cases the statute declares the instruments to be void for these reasons only.

If I am correct in the construction of the act, the objection of the appellants’ counsel, that the plaintiff failed to prove a valid contract, is not sound. I think I have shown that something more than failure to affix a stamp was necessary to invalidate the contract, namely, that the act of omission was with a fraudulent design. I have also, I think, shown where the onus probomdi lies. The production of an unstamped contract is proof of a legal contract, and is sufficient proof until its invalidity is shown by bringing it within the provisions of the act. The rule of strict construction of a penal statute has no application to that part of the revenue act which merely renders contracts void, and a clear discrimination is made between the two cases. Congress did not intend, nor does the act require, that the usual rules of evidence should be changed. Had there been such intent, provision would have been made for relieving parties, as are made in respect to the penalty.

In the case of Beebe v. Hutton (47 Barb., 187), it is intimated that it is incumbent upon the party claiming the benefits of a contract to establish his innocence of any fraudulent design. While I fully concur in most of the views so ably expressed in the very learned opinion in that case, I must dissent from the point to which I have referred, for the reasons which I have already stated. I see nothing in the statute which takes it out of the reason of the ordinary rule, which requires proof from the party holding the affirmative, not only because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable.

The case of Vorebeck v. Roe (50 Barb., 302) substantially sustains the views I have expressed. In the case of Meyers v. Smith (48 Barb., 536), the Court did not notice the very significant words in the act with intent to evade,” &c., but merely assumed that the contract was invalid, because not stamped.

My conclusion is, that an objection to a contract or other instrument because it is not stamped as required by the revenue laws, is unavailing, unless .the pa/rty objecting prove that the stamp was omitted with intent to evade the Act of Congress, and that the mere failure or neglect to affix the stamp is not evidence of such intent.

Concurring in the views expressed by Mr. Justice Jones in this case, I am of opinion that the judgment, as modified by him, should be affirmed.

Fithian, J., concurred.