
    Federal Terra Cotta Company, Plaintiff, v. Potterton Brothers, Inc., Defendant.
    First Department,
    May 19, 1916.
    Contract — contract to manufacture and deliver construed —action for breach of contract — evidence—waiver—rescission.
    In an action under a written contract to recover damages alleged to have been sustained by defendant’s failure to accept terra cotta manufactured for it by the plaintiff, it appeared that on April fifteenth the parties entered into a written contract dated April eleventh by which the plaintiff agreed to manufacture terra cotta according to plans and specifications, and to deliver a portion thereof to defendant within fifty-six days after receipt of approved shop drawings, and the selection of the color or colors by defendant, and the balance thereof within eighty-four days after such receipt and selection; that defendant agreed to supply original drawings from which the shop drawings were to be made, and also such further drawings and explanations as either party might consider necessary, on or before April sixteenth; that in case of strikes, accidents or causes beyond the control of the plaintiff, the period of delay caused thereby should not be a part of the time allowed for delivery, but in such ease the plaintiff should complete the work within a reasonable time; that defendant supplied original drawings within the time stated, and shop drawings were made therefrom, approved and returned on April eighteenth, and that defendant did not select the kind of. surface to be put on the terra cotta until April twenty-fifth. Provisions of the contract construed and evidence examined, and held, that April eighteenth should be deemed the starting point of the fifty-six days within which delivery of the first installment was to be made;
    That defendant’s failure to select the kind of surface to be put on the . terra cotta until April twenty-fifth did not excuse the plaintiff’s delay or default in thereafter completing the contract within a specified time;
    That plaintiff was not relieved from its obligation to deliver the terra cotta by the fact that it before the drawings and necessary information were received, took other work which prevented the performance of its contract with the defendant;
    That there was no rescission of the contract or a waiver of the time within which the terra cotta was to be delivered.
    Motion by the plaintiff, Federal Terra Cotta Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury at the New York Trial Term in October, 1915. Plaintiff moved for the direction of a verdict at the close of the case and the defendant moved for a dismissal of the complaint. The former motion was denied and the latter granted.
    
      William W. Niles, for the plaintiff.
    
      Joab H. Banton, for the defendant.
   McLaughlin, J.:

Action to recover under a written contract $1,875 damages alleged to have been sustained by defendant’s failure to accept terra cotta manufactured for it by plaintiff. At the close of plaintiff’s case defendant moved for the dismissal of the complaint. The motion was denied. At the close of the whole case the plaintiff moved for the direction of a verdict, which was denied, and defendant then renewed its motion to dismiss the complaint, which was granted. Plaintiff duly excepted to these rulings and the exceptions were ordered to be heard in the first instance at the Appellate Division.

There is substantially no dispute as to the material facts involved. On April 15,1913, the parties entered into a written contract, dated April 11, 1913, by which the plaintiff agreed to manufacture certain terra, cotta according to plans and specifications, and to deliver a portion thereof to the defendant within fifty-six days after receipt by plaintiff of its approved shop drawings, and the selection of the color or colors by defendant, and the balance thereof within eighty-four days after such receipt and selection. The defendant agreed to supply plaintiff with the original drawings from which the shop drawings were to he made, and also such further drawings and explanations as either party might consider necessary. These drawings and information were to he furnished on or before April sixteenth. The contract also provided that in case of strikes, accidents, or causes beyond the control of the plaintiff, the period of delay caused thereby should not be a part of the time allowed for delivery, but in such case plaintiff should complete the work within a reasonable time thereafter. The defendant agreed to accept the terra cotta and pay a specified price therefor. Within the time contemplated by the contract the defendant supplied the original drawings, and from them shop drawings were prepared by plaintiff and submitted to defendant, who approved and returned the same on April eighteenth. It is fairly to be inferred that the selection of the color had been made prior to that time, although the testimony is not very conclusive upon that point. But it is not asserted by plaintiff that the defendant failed to perform its duty in this respect. Under the. terms of the contract, therefore, plaintiff was obligated to deliver the first installment of terra cotta within fifty-six days from April eighteenth, viz., June thirteenth. Before plaintiff, however, could complete the requisite paodels and moulds and proceed with the actual manufacture, it was necessary for the defendant to select the kind of surface to be put on the terra cotta. This had not been done on April eighteenth, and in fact was not done until about April twenty-fifth. A fair construction of the contract, therefore, requires that this latter date rather than April eighteenth should be deemed the starting point of the fifty-six days within which delivery of the first installment was to be made. If this be dope, then the first delivery was due June twentieth.

The plaintiff urges that inasmuch as defendant did not approve and return the shop drawings until April eighteenth, and did not inform, plaintiff of the kind of surface selected, it was thereby relieved of its obligation to make the first delivery within fifty-six days of either of those dates — its contention being in this respect that defendant was bound to perform these acts prior to April sixteenth, as a condition precedent to setting plaintiff’s time of performance running, and by reason of defendant’s delays, other work undertaken in the meantime by plaintiff took precedence over defendant’s order and the delay caused thereby is chargeable not to the plaintiff but to the defendant.

I am unable to appreciate the force of this contention. The fallacy of it, as it seems to me, lies in the assumption that plaintiff’s obligation to make the first delivery within fifty-six days was contingent upon defendant’s furnishing all information called for prior to April sixteenth. The contract contains no such provision. Under its terms the only significance of this date is that prior thereto defendant was to furnish such information as would enable plaintiff to prepare its shop drawings. The defendant did not agree to approve and return these drawings at any particular time. It merely agreed to supply the original drawings before April sixteenth, and there is no evidence that it did not do so. As to the selection of the surface, it is perfectly obvious that this was not a part of the information necessary for the preparation of the shop drawings, for they were made by plaintiff and returned, approved by defendant, at least a week before the surface was chosen.

But even if it be assumed that defendant was bound to furnish all information called for prior to April sixteenth, its failure to do so until April twenty-fifth did not excuse plaintiff’s delay or default in thereafter completing the contract within the specified time. Under the contract the plaintiff agreed to make delivery of the first installment of terra cotta, not within fifty-six days from April sixteenth, but within fifty-six days from the receipt of its approved shop drawings and other necessary information. It was not relieved from this obligation by the fact that it saw fit, before the drawings and necessary information were received, to take other work which prevented its performing its contract with the defendant. If it had desired to be relieved upon that ground, then such a provision should have been inserted in the contract. It is quite obvious that plaintiff’s default was due solely to its failure to , prosecute the work with diligence after April twenty-fifth.

As already indicated, a fair construction of the contract required the plaintiff to deliver the first installment on'June twentieth. On June fourteenth plaintiff advised defendant, by letter, that it expected “ to start shipments ” about June twenty-eighth. On receipt of this letter, the defendant wrote the plaintiff, insisting that it make the shipments as required by the contract, and at the same time informed it that “We are under penalty for completion of this work and shall hold you responsible for any damage caused by your delay.” Plaintiff answered on June nineteenth, reiterating that the earliest delivery of the first shipment it could make would be on June twenty-eighth. On June twenty-third a partial strike occurred at plaintiff’s factory, which became general on the following day, and defendant was so advised by letter dated June twenty-fifth, in which notice was given that plaintiff would claim an extension of the time of shipments under the strike provision in the' contract. This letter was not received by defendant until June twenty-eighth, on which day it answered, calling attention to the fact that plaintiff had been in default for several days before the strike occurred. This letter, as well as the defendant’s letter of June sixteenth, clearly indicates that defendant intended to stand upon the strict terms of the contract, and there is nothing in either of them which supports the contention of the plaintiff that defendant waived performance on the part of the plaintiff. There is no evidence of a waiver by defendant of the time within which the terra cotta had to be delivered, unless it be found in the testimony of George A. Potterton, defendant’s treasurer, in which he stated that if the terra cotta had been received at any time prior to July first, it could have been used; or in the two letters written by defendant to plaintiff on July first and third respectively. In the first letter defendant offered to accept the terra cotta if shipped before “ Wednesday of this week ” and expressed the hope that plaintiff might “ find a way to ship at once terra cotta on hand.” To this letter plaintiff replied on July second, stating that it was not in default and relied upon the strike clause in the contract, and would ship the terra cotta “in a reasonable time under the circumstances.” Defendant answered this letter on the following day, calling attention to the terms of the contract, and insisted, as it had theretofore done, that the strike provision did not avail plaintiff, since it had been several days in default before the strike occurred. The letter concluded with the statement, “We must, therefore, insist with the owner that unless delivery of the lintels, quoins and belt course first story be made on July 5th, 1913, we shall cancel the contract and hold you for such damages as your breach may occasion.” The terra cotta was not shipped as directed and then followed other correspondence by which defendant notified plaintiff it would refuse to accept the same if shipped.

I do not think this evidence would have justified a finding that there was a rescission of the contract or a waiver of the time within which the terra cotta had to be delivered. The most that can be said is that there was an offer to waive the time on condition that delivery be made on July fifth. The plaintiff did not accept the condition imposed; on the contrary, insisted it was not in default, and that it had a reasonable time after the termination of the strike in which to make a delivery. It would be a forced, and I think unreasonable, construction under such circumstances to hold that defendant’s offer amounted to a rescission of the contract. (Wittwer v. Hurwitz, 216 N. Y. 259.) If the plaintiff had changed its position, or been prejudiced in any way by the offers thus made, a different question would be presented, but it affirmatively appears this was not the case, for by reason of the strike no work at all was done at all by plaintiff on defendant’s order from June twenty-fourth until July seventeenth — several days after the defendant notified the plaintiff it would not accept the terra cotta.

It is perfectly obvious that the time of delivery was the essence of the contract. The defendant, as plaintiff knew, was engaged in the construction of a building and had to have the terra cotta — otherwise the work could not proceed — and if not completed within a certain time, penalties would be imposed. The defendant neither prevented performance nor waived the time within which the contract had to be performed by plaintiff. It was several days in default when the strike occurred, and while the defendant was anxious to get the terra cotta an offer to take it if delivered within a certain time — such offer not having been complied with—did not inure to the plaintiff’s benefit. The acts of the defendant did not amount to a rescission of the contract or impose upon it an obligation to accept the terra cotta within a reasonable time after the strike had terminated.

My conclusion is that the exceptions should be overruled, with costs, and judgment ordered for defendant dismissing the complaint, with costs.

Clarke, P. J., Laughlesi, Scott and Page, JJ., concurred.

Exceptions overruled, with costs, and judgment ordered for defendant dismissing the complaint, with costs. Order to be settled on notice.  