Fowler v. Fisk

Terry, C. J., delivered the opinion of the Court—Baldwin, J., concurring.

Plaintiff sold defendants a vessel for $4,400, the possession of which vessel he delivered. At the time of sale the vessel was registered as the property of another, so that a proper transfer could not be made at the time. In consequence of this it was agreed that $1,000 of the purchase money should be paid in cash, $1,200 within twelve days, and the remaining $2,200 upon the delivery by plaintiff to defendants of a good title and register of the vessel. $1,200 was paid by the defendant as by agreement. No title or register has ever been delivered or tendered to the defendants; nor is it shown that the plaintiff has ever been in a condition to make such title. The agreement between the parties was, that the money should be paid upon the delivery of the title; and in order to entitle the plaintiff to recover, he must show an offer on his part to comply with the agreement. 1 Chitty Pleadings, 297.

Judgment reversed.