
    William H. Miller et al., Resp’ts, v. Edward Benjamin et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Contract — Errors in delivery — Rescission:
    Under a contract for the delivery of lar ;e quantity of goods at different times occasional or casual failures to deli- er goods of the proper size or weight as called for, which the vendor is v ’tiling to rectify, do not entitle the vendee to terminate the contract; but i ’ the instances are so numerous-as to subject the vendee to serious trouble, he is justified in terminating it.
    Appeal from judgment in favor of plaintiffs entered upon verdict, and from order denying motion for a new trial. Action upon a contract for the sale and delivery to defendants of slit steel, Mo. 27 and 29 gauge. After several deliveries defendants refused to accept any more, claiming a failure of plaintiffs to comply with the contract, in that they sent the wrong gauge, and rescinded the contract
    The following is the charge of the court:
    “ There is no dispute as to the contract here, it was that this plaintiff should furnish, and these defendants should take a hundred thousand pounds of this steel at seven cents a pound, to-be delivered in quantities of about twelve thousand pounds a montn.
    “Mow it is not disputed here that at some time in July, or the 1st of August, these defendants refused absolutely to accept any other deliveries under this contract. Therefore, the first question for you to determine is whether they were justified in so refusing or not. The defendants were bound to receive, and the plaintiff was bound to offer to deliver. The gauges were 27 and 29, which left the defendants the election of picking out which they chose. The defendants say that they refused to go along further under this contract because this plaintiff, instead of delivering to them 29 gauge steel, was delivering to them constantly 27 gauge steel, which is heavier than they wanted for their purpose, besides costing them more for the extra weight, and that it took their time and that of their employes and servants to reject it and send it back. The plaintiff says that he did, in one or two cases, make a mistake in a small lot, sending No. 27 instead of No. 29, but that he received it back, and gave the other in place of it.
    “ Now where there is contract that calls for a great many acts, it is not necessary that a person should perform every part of it literally. It would be a hard rule to hold, and it is not the law, that a person making deliveries of goods under a contract involving a large number of articles, or extending over a long period of time, for a blunder or error made in some deliveries which could be rectified and remedied as long as he was willing to do that, that that should give the other party the right to rescind and terminate the contract. On the other hand, it is apparent that these blunders might be so persistent as to amount to a breach of contract. Now, was there such failure on the part of the plaintiff to furnish the particular sizes or weights of steel called for by these defendants as justified them in terminating the contract ? If there was, and the instances were so numerous as to subject them to serious trouble, and was not in fact a carrying out of their contract, the defendants were justified in terminating it. But if it existed only in isolated cases, or reparation was made for the error, and that did not occasion any severe or substantial loss to the defendants, they would not be entitled to terminate the contract. That is the first thing for you to determine. If you find that the delivery of No. 27 instead of No. 29 gauge was so often as to affect the defendants to their injury, they had the right to terminate the contract; but if there were only an occasional or casual instance, which did not occasion them injury, then they had not the right to terminate it.
    If you find that there was a substantial violation of the contract your verdict should be for the defendants. If you find out, however, that there was not such substantial violation of the contract, or that there were no such deliveries of mistaken sizes or weights, then the plaintiff would be entitled to recover all he has lost by failing to deliver the remainder of this steel, some seventy odd thousand pounds, at the contract price of seven cents a pound, two per cent off.
    Now there is a second cause of action here, for five hundred and odd pounds. The plaintiffs say that the defendants did not pay for it. The defendants say that they did, by a credit which they were entitled to from the plaintiffs on account of having asked them to make up some of this oily steel which they had taken upon the plaintiffs’ promise, if it turned out unfit for use, to stand the expense. If such a contract was made by the plaintiffs it is paid for. But unless you are satisfied of that fact, then it is not paid for.
    On the first cause of action the burden of proof is upon the plaintiffs. On the second cause of action the burden of proof is upon the defendants' to show you that the agreement which they claim was made with the plaintiffs, by which he was to go on and cover this steel at the plaintiffs’ expense if it turned out unfavorably.
    
      Albridge C. Smith, for app’lts; Gwillim & Meyers, for resp’ts.
   Pratt, J.

The testimony would warrant the jury in believing that the mistakes alleged in delivery of goods, if they existed, were trifling in number and amount; that the plaintiffs stood ready to correct them, and that defendants seized upon them as pretexts to avoid a contract whose execution would result in loss.

The charge of the court correctly stated the law. The verdict was justified by the evidence.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  