
    EDWARD S. STOKES et al., Plaintiffs and Appellants, v. DANIEL BROWN et al., Defendants and Respondents.
    
      [Decided June 4, 1870.]
    Where an executory contract for the sale of oil, to he delivered at seller’s option, in certain lots, and at certain times, to bulk-lighter at his yard, contained a clause to the effect that five days’ notice should be given to the buyer on each lot—held, that the giving of such notice was a condition precedent to the right of the vendor to deliver, and to the obligation of the buyer to receive it.
    To sustain an action for the recovery of damages sustained by the buyer because of the non-delivery of the oil, according to the terms of said contract, it is sufficient that the buyer was at all times ready to send his bulk-lighter, and to receive and pay for the oil whenever required to do so by the vendor’s notice that he would deliver at a certain time.
    Before Barbour, C.J., Monell and Spencer, JJ.
    This case was tried before Judge Freedman and a jury.
    The action was brought upon a written contract or sold note, signed by the defendants, for the recovery of damages alleged to have been sustained by the plaintiffs because of the non-delivery to them of forty thousand gallons-of petroleum according to the terms of the contract, which contract or sold note was in the following form:
    “ New York, February 21,1868.
    
      “ Sold to Sterling Oil Works, for account of Messrs. D. Brown & Sons, 80,000 gallons crude petroleum, gravity 40 to 47, at 11-| cents per gallon, to be delivered to bulk-lighter at yard free of expense, tank measurement, quality and quantity to be accepted at the time of delivery at yard, sellers’ option, during the months of March and April next, in lots of 40,000 gallons each. Five days’ notice to buyer oh each lot. Notices to be given at least five days apart.
    “ Terms cash.
    [Written across the face:]
    “ Accepted, D. Beowjv & Sons.
    “ Per 0. J. Tatloe.”
    The complaint alleged, among other things, that on the 28th of April an agreement was made by and between the plaintiffs and the defendants, whereby the time for delivering the 40,000 gallons of oil, which had not yet been delivered, was so extended as to cover and include the 1st day of May, 1868. That fact, however, was fully denied by the answer.
    Upon the trial the plaintiffs proved that they constituted and were the “Sterling Oil Works” named in the contract, their readiness to receive and pay for the oil, the non-delivery of 40.000 gallons, that no notice was ever given to them by the defendants that the latter were or would be ready to deliver the 40.000 gallons in question, and that on the first day of May the plaintiffs requested the defendants to deliver the same, and they refused to do so; and then the plaintiffs, after proving market value, rested their case, without having proven the fact, alleged in the complaint, that the time within which the oil was to be delivered had been extended by agreement. The defendants thereupon moved the dismissal of the complaint, which was granted, and a judgment entered in favor of the defendants. The case comes here upon an appeal from the judgment, and embraces an exception to the dismissal of the complaint.
    
      Mr. Roger A. Pryor for appellants.
    It suffices for the plaintiff to make a prima fade case, and a nonsuit will be directed at the close of his case only when he wholly fails to offer any evidence of some fact essential to the support of the action (Weber v. Kingsland, 8 Bosw., 425; Kelly v. Kelly, 3 Barb., 421; Safford v. Stephens, 2 Wend., 163).
    On a motion for a nonsuit, the defendant admits not only the facts proved by the evidence, but also the facts which the evidence may legally conduce to prove; and the party nonsuited is entitled, upon appeal, to have every doubtful fact found in his favor (Colegrove v. N. Y. & N. H., & N. Y. & H. R. R. Co., 20 N. Y., 492).
    The judge at circuit was understood to dismiss the complaint because the plaintiffs neglected to show payment or tender of payment for the oil, to which we answer:
    1st. That assuming the contract to be an executory contract of sale, imposing concurrent and dependent duties, it sufficed that the plaintiffs were ready, willing, and able to pay for the oil in conformity to the contract. Payment, or tender of payment on their part, was not essential to put the defendants in default (Topping v. Root, 5 Cowen., 404; Porter v. Rose, 12 Johns., 210; Vail v. Rice, 1 Selden, 156; Coonley v. Anderson, 1 Hill, 522; Smith’s Merc. Law, 623; Wheeler v. Garcia, 40 N. Y., 584; Bronson v. Wiman, 4 Selden, 182).
    2d. But this is not an ordinary executory contract of sale, and it does not impose dependent and concurrent obligations on the parties; 1st, the defendants reserved to themselves an option when to deliver, and until the declaration of that option, no duty devolved upon the plaintiffs (Benjamin on Sales, 431; Hilliard on Sales, 158); 2d, the defendants were to give five days’ notice of delivery, which notice is obviously a condition precedent to any duty on the part of the plaintiffs; 3d, the plaintiffs reserved the privilege of rejecting the oil at the time of delivery, in the event it should fail to conform to the contract. Hence, until they had an opportunity to inspect the oil, they were under no obligation to pay or to tender (Startup v. Macdonald, 6 Man. & Gr., 610; Benjamin on Sales, 508, 510, 519; Addison on Contracts, 235; Isherwood v. Whitmore, 11 Mee. & Wel., 347).
    Even if plaintiffs would otherwise have been in default in not mating tender, they were excused by the absolute refusal of the defendants to deliver (Hilliard on Sales, 156; West v. Emmons, 5 Johns., 180).
    Independently of all question as to the plaintiffs’ obligation to pay or to tender, the default of the defendants was clear and consummate. Their failure to serve the five days’ notice of delivery gave the plaintiffs an immediate and absolute right of action (Fowler v. Rigney, 5 Abb., N. S., 184).
    
      Mr. George W. Cotterill for respondents.
    The plaintiffs having brought suit upon the alleged contract as extended by the alleged extension of the 28th of April, 1868, to and including the first of Hay, it became necessary for them to prove such extension; on the contrary, they offered no evidence whatever on the subject.
    In an answer to a question by the court, they did, however, attempt to prove a demand on the first of Hay, but no extension.
    Defendants’ counsel came prepared to meet the plaintiffs on the question of performance or offer to perform on their part, provided they established the fact that there had been an extension, and to try no other issue of fact.
    The court, as indicated by the above question, was trying the same issue, and both counsel for defendants and the court supposed very properly that that issue was being tried, for after-wards the plaintiffs proved that on the first of Hay they demanded, not the oil, but an order for the oil, which was refused, as it very properly might have been refused.
    The complaint, too, apprised us of that issue distinctly, for by the contract the defendants had until the last of April to deliver, but prior to that it alleges that the contract was extended.
    If the plaintiffs designed to recover upon any other state of facts they should have at least asked leave to amend.
    But that could not have been awarded them, for the plaintiffs had sworn under oath that the contract had been extended; if so, the defendants were excused from performing at any other time.
    The contract of extension would have been valid, even if made by parol.
    The defendants were not shown to have been in default at any time.
    
      The plaintiffs, by the very terms of the contract, were bound to have a lighter at the defendants’ yard for the purpose of taking the oil away. The defendants were not obliged to store it.
    This was a condition precedent to the right of recovery; especially as it is proven in the case that their yard was at the foot of Sixty-fifth street; that the plaintiffs knew it.
    And they received the first 40,000 gallons under this contract at that yard.
    This is expressly decided in a case precisely like this in 48 Barb., p. 596, Ketcham v. Hiller.
    By the contract the terms were cash.
    Delivery and payment were to be concurrent acts. The obligations to deliver on the one part and to pay on the other, were mutual and dependent. ¡Neither could maintain an action against the other for a breach of contract without showing performance or an offer to perform (Fickett v. Brice, 22 How., 194).
    A performance or tender of performance must be shown (Dunham v. Mann, 4 Seld., 508).
    The oil was to be delivered to bulk-lighter at yard. The yard was therefore, of course, the place for delivery, and therefore the plaintiffs should have shown an offer to perform at that place.
    Had the defendants sued, it would only have been necessary for them to have shown that they had the oil at their yard ready for delivery, and that the plaintiffs were not there.
    The contract was void for want of mutuality; nowhere are the plaintiffs shown to be parties to the alleged contract.
    On its face it is an executory contract of sale “for account of D. Brown & Sons” to the Sterling Oil Works, and accepted by D. Brown & Sons, and “ stamped and executed in the presence of Smith & Ohlen, Brokers.”
   By the Court:

Barbour, C.J.

It appeared upon the trial that the term “ bulk-lighter,” used in the written contract, meant a schooner so constructed that petroleum could be pumped or run into it, to the extent of some 20,000 gallons, and thus be transported in bulk, without barrels or containing vessels other than the schooner itself.

Construing the instrument with the aid of that fact, it appears to be a contract not merely to deliver to the plaintiffs 80,000 gallons of oil, at such time or times during the months of March and April as might suit their own convenience, but to deliver it in a particular manner and in that way only. They were not entitled to deliver it all in one lot, nor in parcels materially larger or smaller than 40,000 gallons each. Mor could they deliver the second parcel within five days after the delivery of the first. Mor were they entitled to deliver either parcel until they had given five days’ previous notice of their intention to do so. Indeed, as I understand it, the giving of the five days’ notice required by the terms of the contract was intended to be, and was, a condition precedent to the right of the vendors to deliver and to the obligation of the plaintiffs to receive the oil (see Fowler v. Rigney, 5 Abb., N. S., 184).

The reason and object of the provision, in the contract in regard to the notice are quite apparent. The oil being in bulk and not inclosed in casks was, for that reason, to be delivered at the defendants’ yard to a bulk-lighter, the same being a vessel so peculiarly constructed as to be capable of carrying oil in bulk. Of course, no actual full delivery of the oil could have been made according to the terms of the contract unless the lighter was there to receive the same; and it was for the protection of the plaintiffs’ interest, and to enable them to have their peculiar vessel at the place of delivery at the proper time to receive the oil, as well as the money to pay for it if required, that this provision was placed in the contract. It is unreasonable to suppose, in the face of this stipulation, that the parties contemplated that the vendees should either keep their bulk-lighters at the defendants’ yard all through March and April, or intended to require them to incur the expense and trouble of sending such lighters there upon an uncertainty, at any time during the running of the contract, even on the last day thereof. As, then, no demand of delivery could properly be made by the vendees unless they were then prepared to receive the same into their bulk-lighters, it follows that the contract in question did not require the plaintiffs to make such demand in order to entitle them to recover the damages they had sustained by reason of the defendants’ failure to deliver the oil. It was sufficient that they were at all times ready to send their lighters and receive and pay for the oil whenever they should be required to do so by the vendors’ notice that they would deliver at a certain time (Coonley v. Anderson, 1 Hill, 519; Topping v. Root, 5 Cowen, 404; Fowler v. Rigney, supra; Benjamin on Sales, 431; Hilliard on Sales, 158).

I am, therefore, of opinion that when the plaintiffs rested they had established by their evidence all the facts necessary to entitle them to recover; and that the dismissal of the complaint was, consequently, erroneous.

The judgment should be reversed, with costs to the appellants to abide the event, and a new trial ordered.  