
    John Nightingale et al., App’lts, v. Moses L. Eiseman et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 29, 1890.)
    
    1. Contract—Construction or—When entire.
    Plaintiffs, dealers in silk at Patterson, N. J., by their agent took the following order from defendants at New York: “ Order No. 11, January 4, 1886. Eiseman & Co., Grand street, city. Ship by Ex. Bill Mach. Duplicate No.-. Term, 6-10, 1 per cent. Special. Delivery. 25 pcs., February 20th. 50 pcs., March 1st. Balance before March 15th, or earlier if possible. No. 756. 100 pcs., 19 in. surah, at 6c.” Then followed a statement of the colors of the different pieces to be furnished. The figures meant six per cent, off the bill, one per cent, extra discount and the silk to be paid for ten days after delivery. The next day after receiving the order plaintiffs wrote defendants that they would endeavor to forward the goods “ as near as possible to the time specified.” They shipped seventeen pieces March 13, and then brought action for the contract price of the silk delivered. Held, that plaintiffs could not recover; that the contract bound them to deliver the entire quantity at some time, and none of the silk was to be paid for until all was delivered.
    2. Same.
    Even though defendants were bound to pay for each installment within ten days after delivery, plaintiffs were bound to make at least one complete delivery, and defendants could receive the seventeen pieces without waiving their right to demand further performance before paying.
    . Appeal from judgment of the supreme court, general term, first department, affirming judgment entered on order of judge at circuit dismissing plaintiff’s complaint
    
      ATbridge 0. Smith, for app’lts; Theodore Connohj, for resp’ts.
    
      
       Affirming 19 N. Y. State Rep., 169.
    
   Earl, J.

On the 4th day of January, 1886, the plaintiffs were manufacturers of silk at Patterson, New Jersey, and the defendants were dealers in silk, doing business in the city of New York. On that day an agent of the plaintiffs, who was engaged in selling silk for them on a salary, called upon the defendants at their place of business, and took from them the following order:

Then follows a statement of the colors of the different pieces to be furnished. It was proved that the figures 6, 10, 1, following the word “ term ” meant six per cent off from the bill for the silk, one per cent, extra discount, and the silk to be paid fór ten days after delivery. The order having been sent to the plaintiffs by their agent, on the next day they wrote to the defendants that they had received their order and would endeavor to forward the goods “ as near as possible to the time specified.” About the 13th of March they shipped from Patterson to the defendants at New York seventeen pieces of the silk, 'and never thereafter shipped any more; and they commenced this action on the 13th of April thereafter to recover the contract price of the silk delivered. The defendants refused payment before the action was commenced, and defended the action on the ground that the plaintiffs had not performed their contract.

If we assume that the contract as made by the plaintiffs’ agent is to be considered modified by their letter to the defendants, so that they were bound to deliver the silk only as near as possible to the time specified in the contract, yet in any event the contract bound them to deliver at some time. If the circumstances were such as to excuse the plaintiffs from delivery at the time specified in the contract, yet they were bound to deliver and they could perform their contract only by delivering the silk at some time. We are inclined to the opinion that the contract should be treated as an entire contract to deliver the one hundred pieces, and that none of the silk was to be paid for until ten days after the delivery of the whole. But if such be not its proper construction and the defendants were bound to pay for each of the installments of silk specified in the contract within ten days after the delivery thereof, the plaintiffs were bound to make at least one complete delivery before they could call upon the defendants for any payment. The defendants in no way, so far as the evidence discloses, waived complete performance. The seventeen pieces of silk were shipped to them from Patterson. They had no reason to suppose that the plaintiffs intended that shipment as a compliance with their contract to ship twenty-five pieces; and so when they re-, •ceived the seventeen pieces they had the right to suppose that, they would be followed by a further shipment, and that the plain-.' tiffs would continue to perform their contract. They could, i therefore, receive the seventeen pieces without waiving their right to demand further performance before they,could_be_compelledj to pay. At the very first time when they were called upon to speak, that is when they were asked to pay for the seventeen pieces, they refused payment on the express ground that the plaintiffs had not performed their contract, and promised. that they would pay when the balance of the silk was received, and not before.

Therefore, whether we regard this as a single contract by which the plaintiffs were bound to deliver one hundred pieces of silk before they could demand any payment, or whether we consider the defendants bound to pay for each delivery specified in the contract, we think the plaintiffs were not entitled to recover; and for this conclusion the authorities in this state are so abundant that they need not be cited.

At the trial the counsel for the plaintiffs asked one of their witnesses, the agent who took the order from the defendants, the following questions: After you took this order, did you have any conversation with the defendants, or either of them, with respect to the delivery of any of the goods under this contract ? ” “ Alter the taking of that order, what conversation did you have with the defendants in regard to the delivery of the first installment of pieces referred to in the contract ? ” These questions were ■ objected to on the part of the defendants as immaterial, and were excluded by the court. The counsel did not disclose what he expected to prove by these questions, and it is impossible to discover what competent evidence could have been elicited by them. No claim was made at the trial that the contract had in any way been changed, and the court, therefore, committed no error in excluding the questions.

One of the plaintiffs, as a witness, was asked the following questions by his counsel: “ State whether or not but for the strike of the laborers employed in your mill you would have been able to deliver the goods ordered by the defendants at the time stated in the order, or within a reasonable time thereafter?” “ State whether or not the strike of the laborers interfered with the delivery of á portion of the goods ordered by the defendants at the time named in the order given by them? ” These questions were objected to by defendants’ counsel as incompetent and immaterial, and were excluded. No complaint was made at the trial that the plaintiffs did not deliver the seventeen pieces of silk in time. The sole complaint was that they did not deliver even the twenty-five pieces required for the first installment, and any evidence which could have been elicited by these questions could show no justification for a failure to make such delivery at some time before the action was commenced; and, therefore, the questions were properly excluded.

The judgment is clearly right and should be affirmed.

All concur.  