
    Charles A. Moers, et al., Appellants, v. James E. Dietz, Respondent.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Sales — Payment and tender — necessity for tender of payment — Failure to deliver as excusing tender.
    Where, under an entire contract for the sale of metal, plaintiffs had paid for all the metal delivered, they did not commit a breach of the contract by not paying for the balance before the delivery thereof was tendered; and the defendant is liable, for his failure to deliver the balance on plaintiffs’ demand, for the difference between the contract price and the price paid by plaintiffs for the metal in open market.
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Dew York, first district, borough of Manhattan, rendered in favor of the defendant.
    S. C. Sugarman, for appellants.
    H. M. Greene, for respondent.
   Davis, J.

The action was brought to recover damages for breach of the contract for the sale of certain metal. The contract is contained in a memorandum signed by the defendant. It specifies in detail the metal purchased, the number of pounds and the price of each metal. Some of the metal was delivered on October 10, 1904, and some on October 14, 1904. A large part of it was never delivered, the defendant having refused to make further deliveries, alleging as a ground of his refusal the failure of the plaintiffs to pay cash for the metal already received by them. At the time of defendant’s refusal, he had been paid in full for the metal already delivered. These payments had been made Do.vember 10, 1904, and Dovember 14, 1904. Defendant claims that the plaintiffs, by their failure to pay cash on delivery, committed a breach of the contract which relieved him from further performance after October 14, 1904. We think this contract must be deemed to be an entire contract which required the defendant to make or to tender full delivery, a reasonable time after the making of the contract, before he had a right to demand any payment. Therefore, there was no breach of. the contract by the plaintiffs in failing to pay cash when the first delivery was made. At any rate, the breach, if any, was waived by the defendant, when he made the second delivery before the first had been paid for. The plaintiffs demanded the delivery of the remainder of the metal purchased and offered to pay spot cash for it, but the defendant refused to comply with this demand. We think the evidence clearly shows a breach of the contract by the defendant for which the plaintiffs have a right to recover. Upon defendant’s refusal to deliver plaintiffs went into the market and purchased the metal at a higher price. The difference between the contract price and the price paid in the open market was $238.87. They should have had judgment for this amount.

Gildersleeve and Fitzgerald, JJ., concur.

Judgment reversed with costs to appellant to abide event and new trial granted.  