
    Thomas Adams & Company (Limited), Pl’ff and App’lt, v. Saly I. Mayer et al., Def’ts and Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed April 15, 1889.)
    
    Contract—Condition precedent—When must be shown—Complaint— ' When allegation immaterial.
    The complaint set up the terms of the contract under which the goods were sold and delivered, and alleged that the contract provided that the. said goods were to be shipped by the plaintiff to the defendants “ as soon and in as large quantities as the plaintiff reasonably could; ” but in view of the proved and admitted fact that the goods were actually delivered to and received by the defendants, that allegation of the complaint became immaterial, and the action of- the trial court in dismissing the complaint on the ground that the plaintiff must show as a condition precedent that the goods were shipped to defendants in as large quantities as plaintiff reasonably could and that because of the failure to show this fact, the plaintiff had failed to prove his case, was error and the judgment was reversed and a new trial ordered.
    Appeal from a judgment dismissing the complaint upon a trial before the court and a jury.
    
      MacFarland, Board-man & Platt, for app’lt; David Leventritt, for resp’ts.
   Truax, J.

The material allegation of the complaint is that the plaintiffs sold and delivered to the defendants certain goods. It is true that the plaintiffs set up in the complaint the terms of the contract under which the goods were sold and delivered, and allege that the said contract - provided that the said goods were to be shipped by the plaintiff to the defendants “ as soon and in as large quantities as the plaintiff reasonably could; ” but, in view of the allegation that the goods were delivered to the defendants, this allegation becomes immaterial.

It was shown on the trial that the goods were shipped from Liverpool,consigned to the defendants at New York. The defendants went to the custom house with the bill of lading and invoice, and the goods were entered by the defendants, warehoused by them, and remained in their possession, and out of the possession of the plaintiffs, for about three years. After the goods had reached the port of New York, the defendants wrote to the plaintiff in substance as follows: “We regret that we cannot use the goods. We will accept the goods at a price,” less than the price mentioned in the contract between the parties.

It was the duty of the defendants, if they intended to rely upon the terms of the contract, to refuse to receive the goods; and to notify the plaintiff of that fact, saying to the plaintiff: “We regret that we cannot use the goods—we will accept the goods ata price.” less than the price named in the contract—is not a refusal to accept the goods.

It is also to be noticed that it was alleged in the complaint that the goods were to be delivered by consigning the same to the defendants in New York, and this allegation was admitted by the defendants.

The complaint was dismissed at the trial, upon the ground that the plaintiff must show, as a condition precedent, that the goods were shipped to New York in as large quantities as plaintiff reasonably could, and that, because of the failure to show this fact, the plaintiff had failed to prove his case.

We are of the opinion that this was error.

This view of the case renders it unnecessary to discuss the question presented by the ruling of the court in striking out the deposition of the witness Hellers.

The judgment appealed from is reversed, and a new trial is ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., concurs.  