
    James Talcott, Appellant, v. Slater Brothers Cloak and Suit Company, Respondent.
    First Department,
    February 18, 1916.
    Sale — agreement constituting executed sale — waiver by purchaser of breaches of contract by vendor to deliver.
    In an action to recover a balance alleged to be due and unpaid upon a sale of goods by the plaintiff to the defendant, it appeared that under the terms of sale the defendant was entitled to ten per cent discount upon payment within thirty days from September fifteenth; that the goods were to be held in plaintiff’s warehouse subject to defendant’s orders. There was a dispute as to the terms of credit and the defendant after alleged breaches of the contract by the plaintiff in failing to deliver, failed to rescind the contract and made further demands for delivery and accepted several cases of goods after the last alleged breach of the contract, and also wrote a letter to the plaintiff, inclosing a statement of the account with a payment thereon, without claiming or mentioning a rescission.
    
      Held, on all the evidence, that the transaction was an executed sale and title to the property passed to the defendant on the date thereof, subject to plaintiff’s right to hold it until payment of the purchase price was made pursuant to the terms of credit;
    That the defendant waived the alleged breaches of the contract committed prior to the writing of the letter, and its refusal to receive and pay for the balance of the goods, for which the action is brought, was unjustifiable.
    Appeal by the plaintiff, James Talcott, from a judgment of the Supreme Court in favor of the defendant, entered in the
    
      office of the clerk of the county of New York on the 24th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1915, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Augustus L. Richards, for the appellant.
    
      Alex B. Greenberg, for the respondent.
   Page, J.:

The action is to recover a balance of $6,565.65 alleged to be due and unpaid upon the sale of goods to the defendant by the plaintiff. It was shown conclusively at the trial by the evidence of both parties that on August 29, 1913, the defendant’s representative called at the plaintiff’s place of business and bought 230 pieces of chinchillas of a total value of $14,988.40, upon Terms September 15, 10/30,” which meant that defendant was entitled to ten per cent' discount upon payment within thirty days from September fifteenth. It was also agreed that the goods were to be held in plaintiff’s warehouse subject to defendant’s orders, and that any goods paid for after October fifteenth were to be still subject to the ten per cent discount less interest at six per cent on the purchase price from October fifteenth .to the date of said payment.

The only conflict in the case relates to the terms of credit, and was a very sharply contested one. Plaintiff’s witnesses testified that the defendant was given no definite line of credit, but on the contrary all deliveries were to be subject to the approval of Spalding, plaintiff’s credit man, depending in each instance upon whether at that particular time plaintiff had allowed defendant as much credit as he was willing to risk. The defendant’s witnesses, on the other hand, claimed that the plaintiff agreed toa maximum credit margin of $12,000.

Various demands for delivery of the goods were made from time to time during September, October and November, and a large portion of the goods was delivered pursuant thereto. Each shipment was approved by Spalding as to credit before it was delivered to defendant, and during September and October Spalding refused to honor some of the defendant’s demands for the goods until defendant had reduced its indebtedness by payment on account of prior deliveries within what he considered a safe margin of credit. Defendant made protest of unfair treatment at not receiving its goods when demanded, but proceeded thereafter to make payments and accepted subsequent deliveries without complaint and without taking any steps to rescind the contract. On November third defendant demanded and received a delivery of nine cases of the goods which was the last delivery made, and the largest single delivery under the contract. No more goods were taken by the defendant, and on December fifth Spalding, both personally and by letter, requested defendant to receive and pay for the balance of the goods on hand. The defendant refused so to do, saying: ‘ ‘ I am never going to take those goods * * *. The season is over, and I have had to go out and fill my orders by purchasing goods elsewhere, because you wouldn’t send the goods to me without money.” The plaintiff then was holding' goods for the defendant subject to orders amounting to $6,565.65. He notified defendant that the goods were placed in storage for its account and commenced this action for the balance of the purchase price.

It seems clear from the testimony of both the plaintiff’s and defendant’s witnesses that the transaction was an executed sale and title to the merchandise passed to the defendant on August twenty-ninth. This is the theory upon which the plaintiff rests his case, and the defendant’s principal witness, Samuel T. Slater, testified that after inquiring the price, colors and amount of the goods he said: “All right. Then the goods is mine at $1.60 for the colors and one dollar and sixty-seven and one-half cents for the brown. I want to take them in during the months of September and October and the early part of November.” He was then told to see Spalding and arrange about credit and payments, which he did, and the goods were charged to defendant; invoices for the entire purchase were sent to defendant and the goods were held subject to defendant’s orders. The merchandise was then the property of the defendant subject to plaintiff’s right to hold it until payment of the purchase price was made pursuant to the terms of credit arranged between them.

. Accepting the facts to he as the jury have found, the terms of credit and delivery were that the defendant was to be allowed a credit of $12,000 and plaintiff was to deliver the goods to defendant when demanded, so long as the delivery demanded would not place defendant in debt to the plaintiff for goods actually delivered in a sum exceeding the credit. limit of $12,000. The defendant’s claim is that at various times during September and October demand was made upon the plaintiff to deliver the goods and these demands were unjustifiably refused unless certain payments were made, which defendant was unable to make, and that for these breaches the defendant was entitled to refuse to receive the remainder of the goods. The specific breaches testified to were: First, about September seventeenth, when defendant demanded fifteen cases and received only two; second, between September seventeenth and October fifteenth defendant demanded these same goods four or five times and received nothing more until October sixteenth, when three cases were delivered. Again on October fifteenth defendant demanded that all the goods be delivered, and received only one case on October twenty-first. On November third nine cases were delivered, and that was the largest single delivery under the contract and the last delivery made. There is no evidence of any breach of the contract by the plaintiff subsequent to that date. It is clear that if the defendant considered plaintiff’s prior refusals to deliver the quantity of goods demanded as breaches of the contract, it had the option either to rescind the sale as to the undelivered goods or to continue with the contract, in which case it might recover damages for failure to deliver in time. It could not, however, both affirm and rescind the contract. No notification was given to the plaintiff that the defendant elected to rescind the sale, but on the contrary further demands were made for deliveries, and, as shown above, nine cases of the goods were delivered and accepted subsequent to the last alleged breach of the contract. Furthermore, the defendant showed clearly that it still regarded the contract as in force by writing a letter to the plaintiff on November 20, 1913, which made no mention of a rescission, and stated: We are herewith enclosing you check a/c for $1,000. You will also find enclosed a statement showing just what goods we have received up to the present date, and we trust that you will find same correct, which is all we owe you.”

I am of the opinion, therefore, that the defendant waived the alleged breaches of the contract committed prior to that time, and its refusal to receive and pay for the balance of the order on December fifth and thereafter was unjustifiable.

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

Clarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  