
    Clifford L. Miller et al., Copartners under the Name of Clifford L. Miller & Company, Appellants, v. Semet-Solvay Company, Respondent.
    
      Contract — sale — action to recover for failure to deliver portion of goods — defense of waiver.
    
    
      Miller v. Semet-Solvay Co., 199 App. Div. 952, affirmed.
    (Argued January 17, 1924;
    decided February 26, 1924.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1921, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover for an alleged breach of a written contract covering the sale and purchase of 10,400 tons of calcium chloride to be delivered at the rate of 100 tons per week from March 1, 1916, to February 28, 1918. The defense was that for the first five months of the contract the plaintiff did not want delivery of the full 100 tons per week, because it could not use so much; wherefore, the defendant delivered only what the plaintiff called for; that thereafter it delivered the full amount called for to the end of the contract period and that plaintiffs had waived delivery of the amount uncalled for during the first five months.
    
      Leroy B. Williams for appellants.
    
      Nathan L. Miller and H. Duane Bruce for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: His cock, Ch. J.  