#### Christopher Tyler, plaintiff, *vs.*James J. Barrows *et al.*defendants.

1. By an executory contract, the defendants agreed to sell and deliver to the plaintiff’s assignors, at a specified price, a certain number (3000) of barrels of petroleum oil, by installments consisting of a certain number (500) of barrels each, at intervals of fifteen days, until the whole was delivered, provided the buyers gave notice, at such times, of their intention to receive the same. And the buyers agreed to pay that price for so many of said installments as they should notify the defendants of their intention to take, and should receive, and also to pay a certain sum ($1000) for every one of such installments which they should fail so to notify the defendants of their intention to take. *Held*that although it did not appear that the defendants owned any oil at the date of the contract, such contract was not necessarily a wager contract; because the buyers might elect to take all the oil agreed to be delivered, and the sum agreed to be paid for the option of taking or refusing the oil was not necessarily a sum staked upon any event; and unless such contract was incapable of any other construction, or there was extrinsic evidence to show that the parties intended to lay a wager, by means of it, it was not objectionable.

2. *Held, also,*that there was nothing in such a contract to deprive it of the quality of assignability. The right of electing to take the oil was *property*capable of being transferred, and included the right of giving notice, as an incident thereof.

(Before Robertson, Ch. J., and Barbour and Monell, JJ.)

Heard April 11, 1866;

decided February —, 1868.

This action was brought to recover damages for the nonperformance by the defendants of a written agreement. The complaint alleged:

*First.*That during all the times hereinafter mentioned, the defendants were co-partners in trade, doing business in the city of New York, under the firm of Barrows, Haselton & Co.

*Second.*That on the 31st day of May, 1864, the defendants, under their firm name, and Messrs. Fabricotte Brothers, merchants, in the city of New York, entered into an agreement in writing, through Sergeant & Hunt, brokers and agents, duly authorized to make the same, both on behalf *105of the defendants and of said Fabricotte Brothers, in the following words and figures:

“ New York, May 31st, 1864.

Sold for account of Messrs. Barrows, Hasleton & Co.' to Messrs. Fabricotte Brothers, three thousand barrels of standard light straw to white refined petroleum in bond, testing 110% (heat test) and upwards, @ (65cts.) say 65 cents per gallon, net cash, deliverable in yard or alongside lighter.

This contract is made subject to the following conditions, viz: Buyers to notify sellers, on the first day of July next, of their intention to receive five hundred barrels of the quantity above mentioned; on the 15th of the same month, and so on, every fifteen days, in like manner, notice shall be given of the intention to receive five hundred barrels, until the whole three thousand barrels shall be delivered ; or, in case no notice is given, as above stated, buyers agree to pay to sellers two dollars ($2,) per barrel on the several days on which no notice should have been given, viz: $1000 on the 1st and 16th of July, August and September, in consideration for this contract, 'barrels to be all in prime shipping order, gauged by a government gauger, and buyers to furnish evidence of export.” And after-wards, on the 2d day of June, 1864, the defendants further approved of said agreement by writing across the face thereof, the words and figures following, to wit: “June 2d, 1864, accepted ‘ Barrows, Hazleton & Co.’ and the defendants duly delivered said written agreement to Fabricotte Brothers.”

*Third.*That thereafter, for a valuable consideration, Fabricotte Brothers duly assigned and transferred said contract and all their interest therein to Messrs. H. Santler & Weirum, merchants of the city of New York, and who, on the 30th day of June, 1864, for a valuable consideration, assigned said contract and all their interest therein to the plaintiff.

*Fourth.*That thereafter, on the 1st day of July, 1864, the plaintiff duly notified the sellers, the defendants herein, *106that he was the owner and assignee of said contract, and intended to receive five hundred barrels of said quantity of 3000 barrels, on the 15th day of said July; and every fifteen days thereafter in like manner notified the defendants of his intention to receive 500 barrels of said quantity of 3000 barrels, as provided in said contract; and that on the days respectively when said 500 barrels should have been so, delivered, the plaintiff duly notified the defendants that he was ready to receive the same in accordance with, and upon the terms of said contract, and was ready to pay for the same upon the delivery, and demanded that the defendants deliver the same. That in all things, at the time and times named in said contract, the plaintiff fully, and in every respect, performed the conditions thereof; and was ready and fully prepared with the cash to pay for said 500 barrels of petroleum on the respective days when the same should have been so delivered.

*Mfth.*That the defendants refused to deliver, and did not deliver, said 500 barrels of petroleum, on the 15th day of July, 1864, nor- at any time thereafter; but refused to deliver, and did not deliver any of said petroleum as agreed, and as they were notified and required to do; that they entirely refused to perform said contract in whole and in part, and had not performed or complied with any of the conditions thereof, and that the time for any and all deliveries of petroleum under said contract had expired.

*Sixth.*That by reason of such refusal and neglect of the defendants to deliver said petroleum as before stated, the plaintiff suffered damages to a large amount, ($17,200,) with interest on various portions thereof from six different dates, on the 1st and 15th of every month, beginning on the 15th of July, for which sum of $17,200 and interest as aforesaid, the plaintiff demanded judgment, besides costs.

The defendants, by their answer, admitted that the firm of Barrows, Haselton & Co. entered into the agreement set out in the complaint, but denied, that the defendant Levi Kerr, was a party to said agreement or contract, or that any *107notice was given to the defendants as required by the contract set out in the complaint, or according to the terms of said contract or agreement. The defendants further alleged that they had no knowledge or information sufficient to form a Relief whether the said Fabricotte Brothers assigned the agreement set out in the complaint, or whether any assignment was made of said agreement, by any person or persons, to any other person or persons, whatever; but averred that neither of them, nor any one in their behalf, assented to any transfer of said contract, and he denied all right of said Fabricotte to transfer the same without the assent of the defendants.

At the trial, before Justice McOunit and a jury, the plaintiff proved the making and execution of the agreement sued on, and the assignments thereof set forth in the complaint. When the plaintiff rested, the counsel for the defendants moved to dismiss the complaint on the grounds that,

1st. The contract was not assignable, there being a mutual obligation between the parties, the defendants having relied, in making the contracts, on the pecuniary responsibility of Fabricotte Brothers.

2d. The contracts provided that notice should be given by the buyer (and not the assignee,) whether he would take or not, and no such notice had been given.

3d. It was a wager contract, and void by the statute against betting.

The court denied the motion, and the defendant’s counsel excepted to each refusal, on'each separate ground. The defendant’s counsel putin evidence the following notice and demand, addressed to Fabricotte Brothers, signed by the defendants, and dated,

“Hew York, July 2d, 1864.

*Q-entlemen;*As you failed to notify us on the first day of July of your intention to receive 500 barrels refined petroleum on the 15th inst. as per contract, you will please send *108us your check for one thousand dollars, in accordance with said contract, and much oblige, Yours, respectfully.”

Also an answer thereto, addressed to the defendants, signed by Eabricotte Brothers, and dated,

“Hew York, 5th of July, 1864.

*Gentlemen:*We were somewhat surprised at reading the contents of your letter of the 2d inst. knowing that the buyers to whom we sold the contract of the 3000 barrels petroleum had not neglected to notify you in due time that they were ready to receive (as per contract) on the 15th of this month, the first delivery of 500 barrels; under these circumstances we consider our obligation in the matter entirely at an end. We remain, gentlemen, yours truly.”

It was admitted by the defendants that an action was theretofore commenced by the defendants to recover $2 per barrel under this contract, which action is now pending. The counsel for the defendants asked the court to instruct the jury that under no circumstances, after the notice given, were the defendants (Barrows, Haselton & Co.) liable for any thing but the damage for failing to deliver the first 500 barrels, which the court refused to charge, and the defendants’ counsel excepted to such refusal. The court directed the jury to render a verdict for the plaintiff for the sum of $19,000; to which the defendants’ counsel excepted. The court then, on the trial, ordered the exceptions to be heard in the first instance and no judgment to be entered until their hearing and decision at general term.

*S. Huntley,*for the plaintiff.

*G. Dean,*for the defendants.

By the Court, Barbour, J.

The defendants claim that the agreement in question is a wager contract, and, therefore, void; and, also, that such contract is not assignable. Ho other objections to the verdict or claim were made by counsel at the hearing.

*109The word “ sold,” in the contract, imports an absolute and complete change and transfer of the ownership of the oil from the vendor to the vendee; and I do-not find anything in the case tending to show that such was not the fact. Assuming, then, as we- may, that the word “ sold,” in its . connection, imports a declaration on the part of the defendants that their ownership has been vested by them in the purchasers, the case seems to be simply this : In consideration of the sale, and an implied agreement on the part of the vendors that they will keep and store the property until demanded at the several times mentioned, being an average of three months, the purchaser undertakes to demand the oil, in parcels, at each of those several times, or, in case, he shall fail to do so, pay to the former $1000. The motives which induced the vendors to insert that provision in the contract as a condition of the sale, do not appear. Possibly, it was to insure the withdrawal of the oil on the days mentioned, in order that their premises might, certainly, be ready for the reception of other goods; and, also, perhaps, to relieve them then from all liability as bailees, as well as upon their bond, at the custom house. It is unnecessary to speculate upon that subject, however. Looking upon the contract in this light, and considering it, merely, as an agreement on the part of the purchaser to. perform a certain act, or to pay a forfeiture in case of default, there can be no possible reason for supposing it to be a wager contract. ' It is not an agreement to pay money upon the happening or not of a contingent event, any more than would be an agreement to build a house within a limited period, or in case of failure, to forfeit and pay a certain sum.

Having thus arrived at the conclusion that the agreement is valid, it is hardly necessary to declare that the purchaser could make an assignment and transfer of his right to demand and receive the oil.

The exceptions should be overruled.

*110Robertson, Ch. *J.*

The contract on which this action is founded, does not refer to any specific quantity of petroleum oil, nor was any particular lot referred to by the parties. It does not even appear that the defendants owned any oil, at the time they entered into such contract. It, therefore, did not transfer the title to any specific merchandize, but was a mere executory contract by the defendants, to sell and deliver at the rate or price therein mentioned, ■ three thousand barrels of the kind and quality of oil described therein, by installments of five hundred barrels each at intervals of fifteen days, until the whole was delivered, *provided*the buyers, (Fabricotte Brothers,) gave notice at such times, of their intention to receive the same. And such buyers thereby agreed to pay such price for so many of such installments as they should notify the defendants of their intention to take and should receive, and .to pay one thousand dollars for every one of such installments, which they should fail to- notify the defendants of their intention to take.

Such a contract was not necessarily a wager; because the buyers could elect to take all the merchandize agreed to be •delivered, and the sum agreed to be paid for the option of taking or refusing the merchandize was not necessarily a .sum staked upon any count. Such contracts are constantly made, and unless the contract in question is not susceptible •of any other construction; or there is extrinsic evidence to .show that the parties intended to lay a wager, by means of it, it is not objectionable. *(Cassard*v. *Hinman,*1 *Bosw.*207.)

There was nothing in this contract to deprive it of the quality of assignability. There was no agreement for the rendering of personal services, or doing any thing dependent upon personal qualities, and the price was to be paid in cash. The defendants .could demand nothing more from the buyers or their assignees, than the payment of the stipulated price, which was tendered. The right of electing to take the oil, was *property*capable of being transferred, *111and included of course the right of giving notice, and all other rights flowing therefrom. .

The amount of the verdict, although it follows the highest rate of the price of oil at the different dates it was deliverable as testified to, seems not to have been objected to, and no request was made to submit the amount to the jury. I therefore, concur in overruling the exceptions, and rendering judgment for the plaintiff, for the amount of the verdict, and the costs of the hearing.