
    The H. Krantz Manufacturing Company, Respondent, v. The Gould Storage Battery Company, Appellant.
    
      Estoppel — one who considers a contract terminated, should not allow the other party to proceed with its performance — time of delivery of an article.
    
    A person who had employed another to construct an appliance for him and who, as the result of a telephone conversation with the other party, deemed the . contract canceled, but failed to make this understanding known to such other party, although he knew that the latter was proceeding with the performance of the contract, is estopped from insisting upon the alleged cancellation of the contract.
    
      Semble, that if a contract for the manufacture and sale of goods specifies a time for delivery, and delivery is not made by the day fixed, if the vendee then, neglects to insist upon his legal right to terminate the contract and permits the vendor to continue to perform the contract, he cannot insist upon the delay as a defense to an action to recover the purchase price of the goods.
    
      Appeal by the defendant, The Gould Storage Battery Company, from a judgment of the Municipal Court of the city of New York’ borough of Brooklyn, in favor of the plaintiff, entered on the 14th day of March, 1902.
    
      John S. Davenport, for the appellant.
    
      James C. Cropsey, for the respondent.
   Woodward, J.:

This is an action on contract to recover the amount alleged to be due from the defendant to the plaintiff for the manufacture of an electric switch. The complaint alleges that on or about February 26, 1901, the plaintiff and the defendant entered into a contract whereby it was agreed that the plaintiff should manufacture and deliver to the defendant an electric switch; that subsequently, at the defendant’s request, the plaintiff did certain additional work in connection with the switch; that, at like request, the plaintiff made certain modifications of the design and construction of the switch, and duly delivered it to the defendant as required by the terms of the contract. The answer denies the allegations of the complaint. The contract, with its modifications, is in the form of correspondence between the parties, supplemented by verbal instructions to the plaintiff by representatives of the defendant, whose authority to bind the defendant is conceded.

Evidence was introduced by the defendant directed to these points : That tire contract had been canceled and the work abandoned by the plaintiff in April, 1901; and that the switch was not delivered within the time, nor at the place, required by the terms of the contract. The decision of the court before whom the case was tried without a jury was “ that the contract was not canceled in April, 1901; that time was not of the essence of the contract, and that the delivery was sufficient.” It is claimed by the defendant that the contract was canceled by the plaintiff in April, 1901, by telephone to the defendant’s office. This is denied by the plaintiff; and the subsequent conduct of the parties does not confirm the truth of the defendant’s contention. There is evidence that as late as the latter part of June, 1901, there was a conference between the plaintiff’s representative and the defendant’s electrician who had charge of the matter, when the subject of the progress of the work was discussed ; and the defendant produced at the trial a letter received by it from the plaintiff, dated June 13, 1901, plainly indicating that the plaintiff was then still at work on the switch and expected to deliver it soon. Aside from the inconsistency suggested by the reading of the defendant’s evidence of cancellation in the light of this subsequent conduct of the parties — an inconsistency which renders the defendant’s testimony on the point extremely improbable-—-the plaintiff’s evidence of the defendant’s acquiescence in the continuance of the work on the switch, subsequent to the date of the alleged cancellation, is sufficient to warrant the plaintiff in invoking the rule that one cannot stand by in silence when he knows that another is acting upon an erroneous state of facts, and thereafter claim the benefit of the correct state of facts, if such claim will tend to the injury of the other person. (Erie County Savings Bank v. Roop, 48 N. Y. 292, 298.) Conceding the fact that the defendant deemed the contract canceled by the telephone conversation in April, its failure to make this understanding known to the plaintiff, although it had knowledge that the work was progressing, worked an estoppel; and the defendant cannot now be heard to claim the benefit of its contention. This conclusion is made more imperative by the fact that the plaintiff’s letter of June thirteenth contained this statement: We expect to have this work completed within ten days when we will send the switch over to you.” The defendant did not reply to this letter, nor did it communicate in any way with the plaintiff when the ten days had expired. Although the words of the letter seem to express an expectation only, the defendant urges that a time "was thereby fixed for delivery, and the plaintiff’s failure to deliver the switch released it from its obligation under the contract. We cannot concur in this view. As was said in Dunn v. Steubing (120 N. Y. 232, 237), “Upon the failure of the plaintiff to perform by the day fixed, the defendant might have insisted on his strict legal rights and then put an end to the contract, but this he did not do, but permitted the plaintiff to continue the work, and for this reason he cannot now insist on the delay as a defense to an action brought to recover the price of the work.” For these reasons we think the trial court’s conclusion that there was no cancellation of the contract sufficient to defeat the plaintiff’s claim was correct.

There is no reason for differing with the trial court upon the proposition that the delivery was timely. The time for delivery is not specified in the contract nor in any of its modifications. On the contrary, the plaintiff expressly insisted, in a letter written by its president to the defendant on March 26, 1901, after the defendant had directed certain changes to be made in the construction of the switch: “We beg to say that we will under no circumstances be subject to any charge on account of delay in the manufacture of this switch.” To this the defendant replied on March twenty-ninth : You may go on and finish up this switch. There will be no charges against you on account of delay.” The plaintiff thereupon proceeded with the work under the inspection of the defendant’s electrician, it appears, up to the latter part of June, 1901. The switch was delivered in July; and the court has found upon all the evidence that this was a reasonable time, in view of the experimental character of the work, and the numerous alterations made in the original plans, with the defendant’s approval. We think this inference is fairly deducible from the evidence.

It is conceded that the completed switch was tendered for acceptance at the defendant’s New York office, from which all the defendant’s letters to the plaintiff were sent. There seems to bo nowhere in the contract an intelligible provision for delivery at any other place. There surely is no such requirement explicit enough to render the trial court’s failure to detect it a disregard of the evidence sufficient to call for a reversal of the judgment. The form of order sent to the plaintiff contains, in the printed part, words that might suggest a different place of delivery; but the meaning of these words is not clear, and was not explained at the trial.

After a careful examination of the evidence we are convinced that the case was properly disposed of below, and the judgment should not be disturbed. The facts of the whole transaction were exhaustively brought out at the trial. The conflict in the evidence was slight, with a fair preponderance in the plaintiff’s favor. The judgment works substantial justice between the parties and should be affirmed, with costs.

Goodrich, P. J., Bartlett, Hirschberg and Jerks, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  