
    Thomas J. Pope et al., Resp’ts, v. Terre Haute Car and Manufacturing Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October, 1887.)
    
    1. Contract—Pleading—Time of performance material.
    The time when a promise is to be performed is always material and must be stated according to the tru h, and proved as stated, whether it be upon the request of a party thereto, or upon a particular day, or in a icason ble time. Following Osborne v. Lawrence, 9 Wend., 135.
    3. Same — What averment insufficient—Waiver of defect—Code Civ. Pro. , § 499.
    The complaint in an action on a certain contract for the sale of iron, alleged that the ir n arrived in New Orleans and that the plaintiff notified the defendant, and tendered delivery and demanded payment, but there was no averment when the iron arrived, or was tendered, or where by the contract it was to be delivered, or that delivery was made within a reasonable time. No fact was stated from which it could be inferred that the plaintiff's, in that respect, had performed their contract. Reid, that the complaint should have been dismissed. That the defect in the complaint was not waived because the objection was not taken by demuirer or answer.
    Appeal from a judgment of the supreme court, general term, first department, affirming, a judgment in favor of the plaintiffs entered upon the verdict of a jury at the New York county circuit, and also affirming an order denying defendant’s motion for a new trial ón the judge’s minutes. The necessary facts appear in the opinion.
    
      Stephen C. Lockwood, for app’lt; Wm. W. Niles, for resp’ts.
    
      
       Reversing 34 Hun, 633, mem,
      
    
   Andrews, J.

—The defendant’s counsel on the opening of the case moved to dismiss the complaint on the grounds, (1) that it did not allege when the contract was to be performed, and (2) that it did not allege performance, or offer or tender performance within the time. The court denied the motion and exception was taken. The plaintiffs did not offer to amend the complaint. and no amendment was made at any stage of the trial. We think the motion should have been granted.

There is no allegation in the complaint as to the time within which the contract was to be performed by delivery of the iron, and no time is mentioned in the written contract. The law supplies the omitted term, and the contract in legal effect was an engagement on the part of the plaintiffs to deliver within a reasonable time. Benjamin on Sales, § 683, note and cases cited; 2 Parsons on Con., 535, and cases cited.

The promise of the plaintiffs to sell and deliver the iron, and of the defendant to receive and pay therefor, were mutual and concurrent and neither party can maintain an action against the other for a breach of contract without proving performance on his part. It was therefore necessary as a matter of .proof that the plaintiff should show that he delivered or offered to deliver the iron within a reasonable time, for this was his contract, and whatever is essential to a cause of action must be averred. The principle is very clearly stated in Osborne v. Lawrence (9 Wend., 135), in which the court say: “The time when a promise is to be performed is always material and must be stated according to the truth, and proven as stated, whether it be upon the request of the plaintiff, or upon a particular day, orina reasonable time.” The complaint alleges that the iron arrived in New Orleans and that the plaintiffs notified the defendant and tendered delivery and demanded pay-men! But there is no averment when the iron arrived, or was tendered, or when by the contract it was to be delivered, or that delivery was tendered within a reasonable time, nor is any fact stated from which it can be inferred that the plaintiffs in that respect had performed their contract. The allegation that the plaintiffs “ duly ordered the shipment,” does not answer their obligation. Their contract was to deliver in a reasonable time and the undertaking and its performance should have been alleged. The circumstance that they “duly ordered the shipment” or that the vessel was delayed by stress of weather, or similar facts, might have been relevant on the issue of performance.

The difficulty is that the complaint does not show that the defendant was bound to accept or pay for the iron, because it neither sets out the plaintiffs’ undertaking as to the time of delivery or its performance, which was in fact the consideration of the promise of the defendant. The defect in the complaint was not waived because the objection was not taken by demurrer or answer. Code, § 499. The plaintiffs did not apply for an amendment, but took the risk of the sufficiency of the complaint, and cannot on this appeal be relieved from their position. Tooker v. Arnoux, 76 N. Y., 397; Southwick v. First Nat'l Bank, 84 id., 420.

Other questions have been argued, but as the point already considered is decisive of this appeal, it becomes unnecessary to consider them.

The judgment should be reversed and a new trial ordered.

All concur, except Rapallo and Peckham, JJ., absent.  