
    James C. Partridge and Josiah Partridge, Plaintiffs and Respondents, v. Daniel Gildermeister, Defendant and Appellant.
    1. Where the defendant in his own name and on his own credit, agreed with the plaintiffs for the purchase of a specified quantity of goods, to be paid for in notes of a third person, and on the delivery of a portion thereof, the time for the delivery of the residue is postponed to a time specified, and the plaintiffs present a bill for the quantity delivered, and the defendant denied that he was the purchaser, and refused to deliver the notes agreed for, on the sole ground that he was acting as agent for another and not liable on the contract, the plaintiffs are not bound to deliver or to tender or offer to deliver the residue of the goods.
    2. In such case the plaintiffs are entitled, on proof of such refusal upon the ground stated, to recover the value of the portion of the goods which was delivered, if the jury are. satisfied that the purchase was in fact made by the defendant and upon his credit.
    3. By placing his refusal to pay for the goods upon the ground that he was not bound to pay for them at all, the defendant relieved the plaintiffs from delivering or tendering to him any more goods, even if the postponement of the time of the delivery of the residue did not of itself entitle the plaintiffs to claim payment for the portion delivered without waiting for such subsequent delivery.
    (Before Bosworth, Ch. J., Hoffman and Moncrief, J. J.)
    Submitted, December 16th, 1859;
    decided, January 14th, 1860.
    Appeal from a judgment for the plaintiffs on the verdict, had on a trial before Mr. Justice Slosson, on the 20th of June, 1859.
    The action is brought to recover the sum of $946, as the value of certain chairs alleged to have been sold and delivered by the plaintiffs to the defendant, in June, 1857, to be paid for in the notes of John A: Machado & Company, having not more than six months to run; which notes the plaintiffs have demanded of the defendant, and he refused to deliver the same.
    The answer of the defendant at first denied all the allegations of the complaint; and, secondly, averred that the chairs mentioned in the complaint were delivered under and in part performance of an agreement which the defendant, as the agent of one Colquitt, made with the plaintiffs in May, 1857, by which they sold and agreed to deliver on board the ship Ellen Hood, a specified number of chairs of kinds and qualities agreed upon, amounting at the price and value also agreed upon to $2,310, and to receive in payment when the whole should be delivered, the notes of J. A. Machado & Company. That the defendant’s said agency for Colquitt was at the time of making such agreement, disclosed to and was in fact well known to the plaintiffs. That the plaintiffs in June, 1857, delivered of the said chairs a portion, to wit, the chairs in the complaint mentioned and then at their 'request it was agreed between them and Colquitt that the time for the delivery of the residue should be extended, arid, the same should be delivered on board the ship Matao, to sail about the 1st of August, then next; and that the plaintiffs utterly failed and refused to deliver such residue and to complete the performance of their said contract. That Colquitt has at all times been ready and willing to deliver the notes of the said Machado & Company, whenever the delivery of the said chairs was completed according to the said agreement.
    On the trial, the testimony in relation to the making of the agreement by the defendant in his own name and without any mention of Colquitt, or agency for any one, was conflicting. The proof showed a purchase by the defendant, however, of a larger quantity of chairs than was in fact delivered; whether the purchase was for a specified number to be delivered at one time was in dispute. There was evidence that chairs were delivered to the amount named in the complaint, ($946,) and it was claimed by the defendant not only that he was not the purchaser nor liable as such, but that in any event the plaintiff could not recover, because the contract, with whomsoever it was made, was an entire contract, and the plaintiffs were not entitled to payment until all the chairs were delivered or tendered. The plaintiffs gave some evidence that in July, after the delivery of the chairs which were delivered, and after the failure of Machado & Company, they rendered to the defendant a bill therefor, in his name, and demanded from the defendant the notes of Machado & Company for the amount thereof, and that defendant then, for the first time, stated that he bought the chairs for Colquitt, and that plaintiffs must go to Colquitt for their pay, and gave no other reason for not delivering notes of Machado & Company, for the amount of the bill. It appeared on the trial that Machado & Company failed about July 3d, 1857, before the plaintiffs demanded their notes as above stated, but the plaintiffs did not, in the pleadings nor in the trial, claim that they were’ thereby relieved of their obligation (if any ) to deliver more chairs and accept such notes in payment.
    The Judge submitted to the jury the question whether the defendant was in fact the purchaser of the goods, and instructed them that if he was such purchaser and the góods were sold to Tfim on his credit, he was liable, unless the non-delivery of the residue of the goods excused him. That if all the chairs to the amount claimed by defendant were not, by the agreement, to be delivered before the notes should be given, then the non-delivery of other or more chairs was no excuse. And if, by the original agreement a greater quantity of chairs were to be delivered before payment was to be made, still, if after a delivery of a part the defendant, on presentation of the bill therefor, denied that he was the purchaser, or hable under the agreement and placed his refusal to deliver notes in payment on that ground, not objecting that the contract was entire and not completely performed, then the plaintiffs were excused from tendering to the defendant more chairs, and were entitled to recover.
    On the other hand, if Colquitt was the purchaser, or the sale was made upon the credit of Colquitt, the defendant was entitled to their verdict.
    There was no exception to the charge, but the defendant’s counsel requested the Judge to charge:
    
      First. That if the jury believe, from the evidence, that the contract between the plaintiffs and either Gfildermeister or Colquitt was to furnish $2,310 worth of chairs, the plaintiffs cannot recover for the amount actually furnished, unless the contract has been waived by the consent of the parties, or the other party to the contract has released the plaintiffs.
    
      Second. That the denial of the contract by Gildermeister when applied to for the notes, even if found by the jury, is not a waiver of performance on the part of the plaintiffs.
    
      Ihird. That if the jury find that the insolvency of Machado & Company occurred after the delivery of the goods in suit, the fact that Machado & Company had become insolvent was not a sufficient ground for the plaintiffs to rescind the contract.
    The Court refused to charge either of said propositions, other than he had already done, and the defendant’s counsel duly excepted.
    The jury then retired and found a verdict in favor of the plaintiffs for $1,046.83.
    From the judgment entered on such verdict, the defendant appealed to the General Term.
    
      Charles Jones and G. T. Jenks, for the defendant (appellant).
    I. The verdict was not warranted by the evidence.
    
      1. The contract between the plaintiffs and the purchaser, upon which the chairs were delivered, for the price of which this action is brought, was an entire contract.
    The quantity of chairs was specified, and the price was fixed.
    And the time of performance was agreed upon. (Mead v. Degolyer, 16 Wend., 632; 2 Kent Com., p. 509.)
    And, conceding that the contract was entire, the delivery of the whole amount of chairs sold was a condition precedent to any right of action in the plaintiffs upon the contract. (Oakley v. Morton, 1 Kern., 25; Champlin v. Rowley, 18 Wend., 187.)
    II. The learned Judge erred in refusing to charge the proposition requested by defendant:
    That the denial Of the contract by Gildermeister, when applied to for the notes, even if found by the jury, is not a waiver of performance on the part of the plaintiffs.
    Granting, for the argument only, that the statement of the plaintiffs is correct, that Gildermeister purchased the goods for himself, and not for Colquitt, as he insists, even in that case, the denial of the truth by Gildermeister did not change the rights of the parties.
    The plaintiffs claimed that a certain contract existed between themselves and Gildermeister, who, untruthfully, or erroneously, denied that said contract existed.
    The plaintiffs establish the contract, and thus make the defendant liable as contractor with them, pursuant to the contract, and in accordance with its terms, but not otherwise.
    The defendant denied that he purchased the goods, and insisted that Colquitt was the purchaser; and he added, as he says, the statement that Colquitt .insisted upon the performance of the contract.
    He thus claimed, on the part of the purchaser, whoever he might be, the performance of the contract.
    III. The plaintiff could not rescind the contract, because Machado & Company failed on the 3d day of July, 1857.
    A portion of the contract had been performed, and nearly one-half of the goods had been delivered.
    The cases in which it is held that the insolvency of the third party, whose note is to be given for the price on an executory contract for the sale of goods, are all cases in which no delivery of a part of the goods had been made, and in which the time of performance on the part of the vendor had not arrived.
    In the case of Benedict v. Field, (16 N. Y. R., 595,) the goods had not arrived, and no part were delivered; and so, in the cases cited by the Court in that case, it will be found that the same distinction exists.
    By delivering the amount of chairs claimed in the complaint, the plaintiffs had lost their right of stoppage, in transitu, as to the chairs which were delivered, and the defendant, when applied to for the value of the goods so delivered, being ready to receive the balance of the goods contracted for, and to give the whole amount of the paper, and the time having arrived for such delivery, the plaintiffs were precluded by the terms of the contract, and the partial execution of it, from demanding the notes for the chairs delivered, without tendering the portion of chairs sold, but not yet delivered.
    If the plaintiffs desired to rescind the contract, so far as the same was executory, they were bound to lose the price or value of the goods by the delivery of which the contract was partially executed.
    And the defendant was entitled to have this proposition —the third one—charged by the Judge, as it appears by the testimony of one of the plaintiffs, that he called, after the failure of Machado & Company, and demanded the paper of Machado & Company for the amount delivered. Again, the plaintiffs had proved the failure of Machado &. Company, and the fact that Machado & Company had failed undoubtedly had great weight with the jury.
    The judgment should be reversed, and a new trial ordered.
    
      Jno. T. Hoffman, for the plaintiffs (respondents).
    I. The question of whether Colquitt or defendant was the purchaser was a question of fact, and, as such, distinctly submitted to the jury; and they were instructed that if they found Colquitt was the purchaser, the defendant was entitled to a verdict. The jury therefore passed upon this question, and their verdict establishes and finds that defendant himself, and not Colquitt, was the purchaser.
    
      II. The Court also charged the jury, that if all the chairs to the amount of $2,300 were not to be delivered before plaintiffs were entitled to demand Machado’s notes, the non-delivery of the balance did not excuse defendant from liability. This proposition was, of course, indisputable; and it is fair to suppose the jury gave plaintiffs the benefit of it.
    m. The Court further charged that even if the contract was to deliver $2,300 worth of chairs to defendant before the notes were to be delivered, yet the defendant was liable for the amount in suit, if when plaintiff demanded the notes for an amount actually delivered, ($946,) the defendant did not refuse to give them on the ground of the non-delivery of the balance to him, but refused on the sole ground that Colquitt was the purchaser, and not himself.
    This charge was clearly right; and the defendant must be considered as having assented to it, inasmuch as he took no exception.
    IV. The Judge was right in refusing to charge other than he had already done, when defendant’s counsel requested him to charge “that if the contract was to deliver $2,310, the plaintiff could not recover for the amount actually furnished, unless the contract had been waived by the consent of parties, or the plaintiffs had been released; and that a denial of the contract by Gildermeister was not a waiver of performance.”
    1. The request does not say “ if the contract was to deliver $2,310 before any ¡part of the same was to be paid for,” but merely if it was to deliver that amount.
    It assumed that if “ the contract was to deliver $2,310 worth of chairs,” that such delivery was to be made before notes for any part could be demanded, and there was no proof of this whatever.
    It also assumed, inconsistently with the denial of the contract, and while persistently denying that defendant was the contracting party at all, that he would have been liable if the whole amount had been delivered.
    2. The Judge had already charged that the defendant’s denial that he was the contracting party excused the plaintiffs from further performance. Defendant had not excepted to this; and yet he, in effect, requests the Judge to charge that such denial does not excuse plaintiffs, and that nothing would, but a waiver or telease in express terms.
    3. The jury found that defendant was the contracting party, and had received the chairs. He could not when sued for their value claim as a defense the non-performance of a contract which he denied he had ever made. It would be absurd to require plaintiffs to deliver more chairs to a man who denied that he had made any contract to receive or pay for any.
    4. Defendant’s denial of the contract and refusal to give the notes on the ground operated as strongly to release plaintiffs from delivering more, even if they had agreed to, as would "a waiver or release in express terms. And the defendant, having assigned one reason only for refusing to deliver the notes.when demanded, is estopped from setting up a different one when sued.
    5. Even if plaintiffs did agree to deliver $2,310 of chairs, the defendant’s testimony shows that the balance was to be manufactured and delivered at another time, and by another vessel, which was to sail at a future day, and which defendant was to dispatch. There was not a particle of proof to show that payment of the chairs delivered by the first vessel was to await the delivery by the second; nor did defendant ever give plaintiffs any notice that the second ship was ready, or notice to deliver the chairs by her.
    V. The effect of the insolvency of Machado & Company was not a point in the case. There is not a particle of evidence to show that plaintiffs had ever in any way alluded to it, or made it an excuse for not delivering chairs. The only allusion to it in the whole case is by Colquitt, who made it his excuse for not demanding balance of the chairs of plaintiffs.
    The request to charge, therefore, upon this point was improper, and the Court properly refused.
    Nor was the proposition true, as a matter of law. (Benedict v. Field, 16 N. Y. R., 595.)
   By the Court—Moncrief, J.

The Judge charged, in effect, that, although goods to the amount of $2,310 were to be delivered before any notes were to be given to the plaintiffs, yet if the defendant was in truth the purchaser, and refused to give notes for the goods actually delivered, on demand thereof, alleging, as the sole ground of such refusal, that Colquitt was the purchaser, and that the defendant was not such purchaser, then the plaintiffs were entitled to recover.

The jury have found that the defendant, and not Colquitt, was the purchaser. It was to him, therefore, and not to Colquitt, that a delivery or tender of the residue of the chairs was to be made, if to be made to any one.

When the defendant answered a demand for notes for the price of the chairs which had been delivered by a denial that he had bought those actually delivered, he took a position which dispensed with the necessity of an offer to deliver more chairs. (Crary v. Smith, 2 Comst., 60-65; Meserole v. Archer, 3 Bosw., 376.) It would be an idle ceremony to offer to deliver chairs to a person who then denied that he had contracted to buy them, and who also denied that he had bought those already delivered, and on that ground refused to pay for them.

There was no dispute as to the fact that the plaintiffs demanded of the defendant notes for the chairs delivered, and that he denied being the purchaser of them.

On such a state of facts, it is idle to insist that the plaintiffs should have offered then to deliver to the defendant the balance of the chairs. The answer that would have been given is involved in what the defendant had already affirmed, viz., that he was not the purchaser: none had been delivered to him as the purchaser, and he would not take any as purchaser.

There was, therefore, nothing in the evidence calling for the instructions first and secondly requested.

The instruction last requested, it was not error to refuse to give. The notes of Machado & Company, for the chairs actually delivered, had been demanded after their failure. The plaintiffs at no time refused to receive them, or to deliver chairs for them. Their right to recover does not depend upon their right to rescind any contract which they made. It is based on the defendant’s refusal to perform his contract, as the purchaser of goods sold and delivered to him by the plaintiffs.

There is no exception which involves any question relating to the measure of damages; and the appeal brings before us questions of law only. For the reasons stated, the judgment should be affirmed.

Judgment affirmed, with costs.  