
    STEINER MANUFACTURING COMPANY, RESPONDENT, v. JOSEPH KOCHANIEWICZ, APPELLANT.
    Submitted February 12, 1926
    Decided May 17, 1926.
    On appeal from the Supreme Court.
    For the appellant, Harry B. Dembe.
    
    For the respondent, R. Lewis Kennedy.
    
   Per Curiam.

The appellant entered into a contract in writing, dated February 28th, 1924, for the purchase of a meat chopping machine for the sum of $330, on account of which, at the time of signing the agreement, he paid $31.50. The order or agreement of purchase commenced as follows:

"City oe Bayonne, E. J.
Date Feb. 28, 1924.
Steiner Manufacturing Company,
St. Louis, Mo.
Please ship as soon as convenient, subject to strikes, ac'cidents or other delays * *

The machine was delivered March 11th, 1924, and appellant refused to accept it upon the ground that the salesman who took the order had agreed that- delivery would be made March 1st, 1924.

Suit was then brought in the District Court to recover the balance of the purchase price of $298.50, and was tried’ before that court and a jury, resulting in a verdict for the respondent upon direction of the trial judge. On appeal from the judgment of the District Court the Supreme Court affirmed that judgment, and this is an appeal from the judgment of the- Supreme Court.

We conclude that the judgment of the Supreme Court must be affirmed.

There are two grounds of appeal. The first is: That whether or not delivery on March 11th, 1924, was in compliance with the terms of the contract to deliver “as soon as convenient” was a jury question, and it was error for the trial court to pass upon it' as a question of law. With this we do not agree. The state of the case presents no facts upon this point that could be submitted to the jury.

The second ground is that the trial court erred in striking out testimony tending to show that the salesman fraudulently represented that the contract provided for delivery on March' 1st, 1924.

Upon this point our conclusion is that McDonald v. Central Railroad Co., 89 N. J. L. 251, is not applicable, but, as held by the Supreme Court, Fivey v. Pennsylvania Railroad, 67 Id. 627, is controlling.

The judgment under review is affirmed.

For affirmance — The Chief Justice, Parker, Kalisch, Black, Katzenbach, Campbell, White, Gardher, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 12.

For reversal, — None.  