
    C. Townsend Wilson, as Survivor of Himself and Edmond W. Granger, Deceased, Respondent, v. The Empire Dairy Salt Company, Appellant.
    
      Sale of merchandise “to be taken out within the next 90 days ” — the contract is executory and the title does not pass — time is of its essence.
    
    A grocer wrote to a salt manufacturing company asking it to quote its lowest price for •* 10 cars No. 1 Common Fine Salt, to be taken within 60 days,” to which the salt company replied, “ We quote you the following prices on ten cars No. 1 com. fine salt, to be taken within the next 60 or 90 days.” The grocer then wrote, “ You may enter our order for 20 cars No. 1 Common Fine-Salt, to be taken within 90 days,” and the salt manufacturing company answered, saying, “ We are in receipt of your favor of Aug. 30, enclosing order for 20 car loads of No. 1 Common Fine Salt, at 48c. per barrel, f. o. b. cars Warsaw, to be taken out within the next 90 days. * * * We have entered same and will ship upon receiving instructions from you.”
    It did not appear whether the salt manufacturing company, at the time of making the contract, had on hand ready for delivery a quantity of salt equal to or exceeding the amount specified in the contract and undistinguishable therefrom in grade, quality or value.
    
      Held, that the contract was executory, and that the title to the twenty cars of salt did not pass at the time of the making of the contract;
    That time was of the essence of the contract and that the salt manufacturing company was not obliged to honor shipping orders sent to it after the expiration of the ninety days.
    Appeal by the defendant, The Empire Dairy Salt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of January, 1899, upon the decision of the court, rendered after a trial before the court without a jury at the Erie Trial Term.
    
      
      Eugene M. Bartlett, for the appellant.
    
      Harry D. Williams, for the respondent.
   Laughlin, J.:

This is an action at law to recover damages for breach of an express contract. On the 27tli day of August, 1897, the plaintiff, who was a wholesale grocer at Buffalo, N. Y., wrote the defendant, which is engaged in making and selling salt at Warsaw, N. Y., asking it to quote lowest price it would make on “10 cars No. 1 Common Fine Salt, to be taken within 60 days.” The defendant answered by letter the following day, saying, “ we quote you the following prices on ten cars No. 1 com. fine salt, to be taken within the next 60 or 90 days,

“ Common Fine Salt, per bbl. .48,

“ This price is f. o. b. cars Warsaw, and is for our best salt which is thoroughly dried. Trusting to be favored with your order, we remain,” etc.

The plaintiff replied on August 30, 1897, “you may enter our order for 20 cars No. 1 Common Fine Salt, to be taken within 90 days at 48c. per barrel, f. o. b. Warsaw. We will sell as much Dairy and Table Salt as possible with this Common Fine, and presume you will make us same price we have been paying.”

The defendant replied by letter next day, “ we are in receipt of your favor of Aug. 30, enclosing order for 20 car loads of No. 1 Common Fine Salt, at 48c. per barrel, f. o. b. cars Warsaw, to be taken out within the next 90 days / for which please accept our thanks. We have entered same and will ship upon receiving instructions from you.”

Within ninety days thereafter the defendant shipped to the plaintiff eleven and a half carloads of common fine salt, for which he paid according to the contract price. The plaintiff gave no order or shipping direction for any part of the remaining eight and one-lialf carloads, or 857 barrels of salt, during said ninety days, and there was no further agreement or correspondence between the parties on the subject within that time. It appears from the record that on December 1, 1897, two days after the expiration of the ninety days, the plaintiff requested the defendant to ship 200 barrels of common fine salt immediately. The record is silent as to the defendant’s action on this order, unless we are to infer that it was not complied with, from the fact that a recovery has been had for the entire remainder of the twenty carloads not delivered within said ninety days.

On January 10, 1898, the plaintiff ordered 100 barrels of this grade of salt, and the defendant by letter thereupon drew plaintiff’s attention to the fact that the contract had expired, and declined to fill the order for less than fifty-five cents per barrel. The market price of salt had so materially advanced that on January 15, 1898, it was sixty-two and one-half cents per barrel. Between the 10th and 28th days of January, 1898, the parties had considerable correspondence, wherein the plaintiff demanded the eight and one-lialf carloads of salt, and the defendant declined to ship or deliver the same on the ground that the contract had expired, and that its custom had always been to make new quotations at the commencement of a year.

The plaintiff alleges performance upon his part and failure to perform on the part of the defendant.

The facts fall far short of bringing the case within the authority of Kimberly v. Patchin (19 N. Y. 330), or Russell v. Carrington (42 id. 118), or like decisions, holding that upon a sale of a specified quantity of personal property then in existence and forming part of a mass indistinguishable in quality or value, its separation or delivery is not essential to pass title where the intention to do so is otherwise clearly manifested. The record fails to show whether the defendant, at the time of making this contract, had bn hand at Warsaw or elsewdiere, ready for delivery, a quantity of salt equal to or exceeding the amount specified in the contract, and undistinguishable therefrom in grade, quality or value.

We are of opinion that this case comes within the principle of Higgins v. D., L. & W. R. R. Co. (60 N. Y. 553, 556, 558), and Cornell v. Clark (104 id. 451); that the contract is executory, and title does not pass where the intention to pass title is not clearly manifested, and where something remains to be done to ascertain and identify the subject of the sale, and not merely to determine, by count or division, the purchase price. We also think that time was of the essence of the contract. The correspondence shows, especially the defendant’s final letter accepting the order and restating the contract, that the parties deemed the condition “ to be taken out within the next 90 days ” quite important and material. (Higgins v. D., L. & W. R. R. Co., supra.) The case of Atkinson v. Truesdell (127 N. Y. 230) is distinguishable on the ground that the goods were there manufactured under a special order, and the action was by the vendor, who was relieved from making a tender by proof of a uniform, continuous and well-settled usage and custom. It was incumbent on the plaintiff to show that he gave shipping orders for the remainder of the salt, or otherwise demanded delivery thereof within the period fixed by the contract. Otherwise the defendant would not be shown to be in default, as unless it wished to hold the plaintiff to performance, it was under no duty to remain ready to perform thereafter. (Nelson v. Plimpton Fire Proof E. Co., 55 N. Y. 480, and Higgins v. Eagleton, 155 id. 466.)

The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  