
    John B. Hall, Appellant, v. New Hartford Canning Company, Ltd., Respondent.
    Fourth Department,
    November 20, 1912.
    Contract — action tó recover for partial delivery — acceptance of partial delivery—damages — failure to receive complete delivery.
    Where in an action by the assignee of a claim to recover for peas delivered under a contract by the plaintiff’s assignor to grow and deliver to the defendant certain quantities and varieties of peas, it is apparent from defendant’s letters to plaintiff’s assignor, following its receipt of peas delivered by the latter, that its purpose was to accept such delivery as a partial performance of the contract, and in the event of a failure to receive a complete delivery to assert its claim for damages by reason of such failure, plaintiff should be allowed for the peas delivered in partial performance of the contract, less the defendant’s damages caused,by the failure to receive a complete delivery.
    Appeal by the plaintiff, John B. Hall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 6th day of September, 1911, upon the report of a referee appointed to hear and determine the issues.
    
      Donald Bain, for the appellant.
    
      Henry J. Cookinham [Cookinliam& Cookinham, attorneys], for the respondent.
   Robson, J.:

The claim which is the cause of action alleged in plaintiff’s complaint was assigned to him by the McMorran-Gray Company, Limited, a copartnership duly formed and existing under the laws of the State of Michigan.

The business of the McMorran-Gray Company was growing and furnishing seeds to canners and seedhouses. A written contract, dated December 21, 1907, was made by them with defendant by which they agreed to plant sufficient seed ordinarily to produce certain designated varieties of peas in the quantities thereinafter specified, and, “the season permitting the growing of the same,” to deliver the same to defendant free on board at growing station on or before January 1, 1909, or as soon as ready. The defendant on its part purchased the amounts and varieties of peas specified in the contract at the prices fixed therein as follows: 1,000 bushels Admiral at $2 per bushel; 500 bushels Alaska at $2.25 per bushel and 100 bushels Prince of Wales at $2.30 per bushel. This written contract contained a further agreement that the McMorran-Gray Company should plant a certain quantity of beans to be furnished by defendant and deliver the whole net product thereof to defendant at prices specified therein. In about November, 1908, defendant by a further contract with the McMorran-Gray Company bought 150 bushels of Admiral and 80 bushels of Prince of Wales peas at the agreed price of $1,157. No controversy arises as to the delivery to and receipt by defendant of the peas to fill this last contract, nor is it seriously questioned that the beans were planted as provided in the contract, and the whole net product thereof delivered to the defendant. W e agree with the conclusion of the referee that the contract for growing the beans was a severable and distinct contract not dependent upon the contract for growing the peas, although the two contracts were included in the same instrument. The principal question of fact litigated in the action was whether the McMorran-Gray Company had complied with its contract. to grow and deliver peas as therein provided. The delivery in fact made to defendant was at the rate of thirty per cent of Admiral and Alaska and forty per cent of Prince of Wales peas. That is, instead of delivering 1,000 bushels of Admiral peas the delivery was 300 bushels; instead of 500 bushels of Alaska peas 150 bushels were delivered, and instead of 100 bushels of Prince of Wales peas, 40 bushels were supplied. We are of the opinion that the finding of the referee that defendant was entitled to an additional delivery of peas of each variety grown by the McMorran-Gray Company under its contract with defendant was correct, this additional amount being thirty per cent of the amounts retained by the McMorran-Gray Company from .the crop of Admirals and Alaskas and forty per cent of the amount so kept out of the crop of Prince of Wales to replace the seed sown, and that no custom binding upon defendant permitting the McMorran-Gray Company to so retain from the crop an amount equal to the seed sown before making division of the crop among purchasers having like contracts was proved. The additional delivery of peas to which defendant was entitled upon tins basis was 323.56 bushels of Admirals, 233.1 of Alaskas and 30.8 of Prince of Wales. Defendant in its answér set up its damages caused by the failure of the. McMorran-Gray Company to deliver peas as required by the contract as a counterclaim to plaintiff’s cause of action, and the referee has allowed damages by reason thereof. Correcting a trifling, though apparent, error of the referee in computation of these damages, their amount appears to be $1,607.59. Though the referee allowed defendant’s,counterclaim for damages by reason of the McMorran-Gray Company’s failure to make the full delivery of peas to which defendant was entitled under the contract, he denied any allowance to plaintiff for the contract price of the partial delivery of these contract peas actually made to defendant by the McMorran-Gray Company. This we think was error. At the contract price the peas thus delivered amounted to the sum of $1,029.50. No allowance was made to plaintiff for this delivery because, as the referee held, there could be no recovery therefor until the whole quantity to which defendant was entitled had been delivered. He also refused to find that defendant had waived complete delivery. But though it was not established that defendant waived a complete delivery in the sense of accepting the partial delivery as a complete performance of the contract, yet it is apparent from defendant’s letters to the McMorran-Gray Company, following its receipt of the peas delivered by the latter, that its purpose was to accept that delivery as a partial performance of the contract, and in the event the McMorran-Gray Company failed to make a further and complete delivery to assert its claim for damages by reason of such failure. After receiving the delivery of peas made by the McMorran-Gray Company, and understanding that they claimed it to be a full delivery under the contract, defendant wrote them a letter, from which the following excerpt is quoted: “We positively decline to accept the delivery which you have made as in full for contract. If you see fit to bring action we shall be more than glad to give the matter a full airing in Court.” Some days later, replying to an intermediate letter of the McMorran-Gray Company, defendant wrote: “We see no reason for remitting you. If you persist in refusal to deliver balance of our contract the matter of damage to us will more than offset the goods you have shipped. If you doubt our ability to prove this claim by all means start your action but we assure you that you will save money by fair dealing.” Clearly this correspondence, followed as it was by defendant’s interposing as a counterclaim in this action its claim for damages by reason of failure to complete delivery under the contract, shows, as was said in Silberman v. Fretz (16 Misc. Rep. 449, 452), “ that the defendant did not expect to avoid payment for the goods delivered, except by recouping his damages for non-delivery of the remainder.” The contract being entire defendant could not be compelled to pay for a delivery which was only a partial performance of the contract, if it chose to assert its- right to full performance before any obligation to pay arose. “But full performance of a contract may be waived by the parties so as to enable the one against the other to obtain relief for partial performance; and so may defective performance be accepted, subject to the right of the party damnified to recover or recoup damages for the loss he has sustained- by reason of it. In such case the right of forfeiture is denied to the party, his right exists in the contract, and his remedy for relief rests in his assertion and proof of damages for the defective performance by the other party whose right, subject to such claim, remains effectual.” (Parke v. Franco-American Trading Co., 120 N. Y. 51, 56; Highlands Chemical & Mining Co. v. Matthews, 76 id. 145; Avery v. Willson, 81 id. 341; Leavenworth v. Packer, 52 Barb. 132, 137.) Defendant was, of course, entitled to full compensation for its loss by reason of the failure of the McMorran-G-ray Company to completely perform its contract. Beceipt by defendant of the partial and incomplete delivery, together with the allowance to it of damages for failure to make complete delivery, is in effect the same as though complete performance had been tendered to and received by it. It would be manifestly unjust to permit it to retain without charge the peas delivered in partial performance of the contract and in addition recover damages for failure to deliver the balance necessary to make that partial performance complete.

The appellant’s rights were not prejudiced by the referee’s decision of the other questions now urged as ground for reversal of the judgment. It, therefore, appears that the referee should have allowed plaintiff the sum of $1,029.50 for the delivery óf peas in partial performance of the contract in addition to the sum of $1,343.09 fixed by him as the amount plaintiff would have been entitled to recover except for the allowance of defendant’s counterclaim. Defendant’s damages fixed by the referee, corrected as above set forth, are $1,607.59. Plaintiff should, therefore, have had a judgment against defendant of $765 and costs. ■

It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event, unless defendant stipulates that the judgment be modified as of the date of entry thereof so that plaintiff recover of defendant the sum of $765 damages, besides the costs of the action, in which event the judgment as modified is • affirmed, without costs of this appeal.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event, unless the defendant shall, within twenty days, stipulate that the judgment be modified as of the date of entry thereof so as to provide that the plaintiff recover of the defendant the sum of $765 and the costs of the action, in which event the judgment is modified accordingly, and as so modified is affirmed, without costs of this appeal to either party.  