
    Hennequin vs. Sands & Fox.
    Where goods are sold, for which a note is to be given at six months, if the goods be delivered and the note not demanded until nearly two months after the sale, the condition will be deemed to have been waived.
    
    Error from the New-York C. P. Hennequin sued Sands & Fox in an action of replevin in the delinet for a quantity of merchandise sold by the plaintiff to J. P. Dillentash, on the 19th September, 1838, amounting to $1,427,52. The goods were sold to Dillentash, a retail dealer of dry goods, upon the express condition that he should give his note for the amount, payable in six months ; the goods to be sent to Dillentash, and he to send his note to the plaintiff after he had examined the goods and compared them with the bill. On the day of sale the goods were sent to Dillentash, but he did not send his note. About the twelfth day [ *641 ] of November, 1838, a note was demanded from * Dillentash, who was sick but said he would give the note as soon as he was able to write. On the nineteenth of November he died. Two or three days before his death, his clerk, by his directions, delivered a quantity of goods to the defendants, (amongst which were a portion of the goods in question,) in payment of a debt. On this evidence the plaintiff rested. The defendant’s counsel moved for a nonsuit on the grounds: 1. That the delivery of the goods to Dillentash, was absolute and the title passed; and 2. That if the delivery was conditional, the condition was waived by lapse of time, before demand of the note. The presiding judge nonsuited the plaintiff, on which judgment was entered. The plaintiff sued out a writ of error.
    
      J. Miller, for plaintiff in error.
    
      J. Prescott Hall, for defendant in error,
    cited 2 Paige's R. 169 ; 1 Edward's Ch. R. 141; 2 Id. 430, 652 ; 6 Cowen, 110; 6 Wendell, 77 ; 8 Id. 247; 22 Id. 670; 4 Wash. C. C. R. 588; 6 Pickering, 262; 1 Campb. 427, 513.
   By the Court,

Nelson, C. J.

There can be no doubt that the judgment of the court below was correct, upon the second ground taken by the counsel for the defendant. Nearly two months had elapsed after the sale and delivery of the goods before any step was taken to insist upon the note being delivered ; and even then the agent of the plaintiff took the word of Dillentash that he would give the note when he got well.

Judgment affirmed.  