
    Clarence H. Clark et al., App'lts, v. Ann Fey, as Adm’rx, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    Contract—Sale—Modification of contract.
    Plaintiffs contracted, in writing, with John Fey, to ship a specific quantity of iron during “ January or February, or March, seller’s option.”' Plaintiffs claimed an alleged paroi modification of the original contract, which made a tender of other rails than those specified a fulfillment of the contract. Held, that such modification was either an agreement that plaintiffs having set apart and tendered the contract rails which had arrived, and payment for which was due, would “carry” them for an indefinite time, or that the contract rails should be mutually abandoned and other rails accepted, and on either construction,"plaintiffs could not recover, as they did not “ carry” the contract rails, and the new contract was void under the statute of frauds.
    Appeal from judgment of the supreme court, general term, first department, affirming a judgment dismissing plaintiffs’ complaint.
    
      Treadwell Cleveland, for app’jts; Jno. H. Parsons, for resp’t.
    
      
       Affirming 21 N. Y. State Rep., 250.
    
   Finch, J.

It is not disputed that the rails which were finally tendered to the vendee, and then sold for his account and risk, producing a deficiency below the contract price, which deficiency forms the subject of the action, were not the rails which the vendee bought and the vendors sold. By the original written contracts those rails were to be five hundred tons shipped “from the-other side, January, or February, or March, seller’s option.” It is the settled rule that, in a case like the present, the date of the shipment is a material element in the identification of the property. Hill v. Blake, 97 N. Y., 216 ; Tobias v. Lissberger, 105 id., 404 ; 8 N. Y. State Rep., 43. It was not five hundred tons of rails generally that were the subject of the contract, but a specific quantity shipped from the other side during the three named, months, and unless such were tendered, the contract was not performed. The offer of other rails would impose no obligation upon the purchaser. It is clear, therefore, that the tender finally made was not of the property specified in the contract, and left no liability upon the vendee resulting from his refusal to accept, unless there is something else about the case.

There is something else about the case upon which the vendors rely as entitling them to a recovery; and that is an alleged paroi modification of the original contract which made the final tender and the-sale founded upon it sufficient. A cc.: ersation relative to the existing agreement took place between the vendee and Mr. Post representing the vendors on or about the 20th day of April That was within the permitted time of delivery. The seller might have shipped during the last days of March by sail instead of by steam, and so had an average of from thirty-five to forty-five days for the arrival. The conversation, as detailed by Mr. Post, was thus stated: “ Mr. Fey came in and said that in consequence of the price of old rails falling from forty-five dollars a ton to practically twenty-three dollars a ton, it was a very difficult thing for him to take those rails; that he could not sell them now to anybody, and wanted me to be as easy with him as I could, and wanted me to carry the rails, and give him some rails later. I told him, on personal considerations, I had known him for a long time, that I would do everything I could to accommodate him. I said I would carry the rails for him, and give him some rails a little further on in place of them, and perhaps the price would get better.” It is evident that this conversation on the part of Mr. Fey was based upon the assumption that the contract rails had arrived, and were ready for delivery, and had been duly tendered. Indeed, Mr. Post was asked: “ In that conversation at that time did you say anything about your readiness to deliver the iron that be had bought of you? ” and answered, “ Perhaps I should have ,<.J earlier that that was the basis of having informed him we were ready to do it, and wanting him to pay for it, was the reason he wanted us to make it easy for him.” Mr. Post was farther asked : “You did make such an offer to him at that time? ” and replied in the affirmative. And thus, the basis of this new negotiation was an understanding on both sides that the contract rails had arrived, were ready for delivery, and that payment was due. By the contract the purchase price was payable in part upon delivery to the vendee of “order on vessels,” and balance “on handing weighmaster’s return."

No such order or return was tendered in April, and the facts leave it doubtful whether the sellers in the month of April were in possession of or could have tendered either. But assuming that they could have made delivery in the mode prescribed by the contract, and that they were excused from the formal tender of the papers by the act of Fey, it is yet apparent that one of two things followed dependent upon the construction of the paroi agreement. That is somewhat ambiguous in its terms, but it could have had only one of two meanings. , It must be construed as an agreement, either that the plaintiffs, having set apart and tendered the contract rails which had arrived and payment for which was due, would “ carry them ” for the account and at the risk of Fey for an indefinite but reasonable period; or that the sale of the contract rails should be mutually abandoned, and instead thereof the sellers should be permitted to deliver and the buyer would, accept other and different rails from those specified in the written contract. I do not see how, upon either construction, the plaintiffs could recover.

They did not “ carrythe contract rails. -At-the conversation in April none had heen set apart and identified as the.property of Fey under the contract, even if we concede that- such separation and identification was within the then power of the sellers. They had not set apart rails for Fey as his and as being carried for him. It was not until some time in June that 500 tons of rails were, set apart as the property of Fey, and that was done upon the requirement of parties interested with the vendors who “ insisted upon it that Mr. Fey should take those rails so as .to make, him pay the storage.” It is plain that up to that time -no specific rails had been set apart or identified ‘as the contract property of Fey upon which he was liable for storage. But the sellers did not carry the contract rails. If they ever in any manner séparated or identified them, they sold them to other parties, for Mr. Post says that he told Fey in June, “ we are going to set aside 500 tons of - rails for him, and he said that was all right.” The 500 tons thus set apart in the month of June to be carried for Fey and upon which, therefore, he was to pay storage, were rails not shipped in the contract months, or not shown to have been so shipped. When ultimately sold, it appears from the bills of- lading, that some were shipped on the Ivanhoe at Antwerp, April 9,1880, some by the Apotheke Deising at Amsterdam, April 28, 1880, and some by the Sara Caino, whose date of sailing from the other side is unproved. And it was these rails which the vendee was called upon to accept and which were sold for his account on his refusal. So that the sellers did not carry for Fey the contract rails and-tender them for final acceptance. -

The other view of the April conversation dispenses with such tender of contract rails and- permits the carrying and offer of any old rails shipped from the other. side irrespective of the date of shipment. But that is a new contract and not a modification of the old one. " It substitutes for the "sale of the contract iron a new. sale of different iron which never before had been the subject of a contract. It .was not' merely a change-of the - date of delivery and the time of payment,- but ‘of the very subject-matter of the contract, of the thing sold on the one hand-and purchased on the other. It 'touched and altered the consideration an'd substance of the agreement' instead of merely modifying the ternis and .manner of performance." The old contract was.not tobe performed at all. The property which-it- stipulated about .was not to-be sold by one party or bought by the other,, but instead thereof and in' place of "the iron -to" which it related1 a .new contract for the sale and purchase of different .iron entirely.’. That new contract, washy paroi andivoid-under the Statute- of Frauds arid so 'neither view of'the new'agreement will enable'the plaintiffs to recover. The old -contract was-rescinded j -the new .one remained -wholly' executory on both sides. : /' r - : - -

We.discover no ground upon which the judgment..can .be. deemed erroneous, audit should be 'affirmed, .with,costs, f. ■

All concur.  