
    William H. Dannat et al., Resp’ts, v. Norman J. Fuller, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 10, 1890.)
    
    Waives—Effect of, where time is an element of the contract.
    Defendant agreed, within the space of thirty days, to set up a circulai sawing machine as per contract, plaintiffs to furnish a mechanic to perform the labor under defendant’s directions, and also to furnish timber. The mill was delivered May 30, 1881, but plaintiffs did not provide the timbers on which it .was to 'rest for twelve days, and the mechanic was called away, so that defendant was delayed thirty days in all. August 26, 1881, plaintiffs gave notice to defendant that they rejected the mill. On a suit for damages the referee found as damages its rental value at $25.00 per day with interest from the day of rejection. Held, error; that the failure of plaintiffs to perform on their part operated as a waiver as to time, and defendant had the right to perform his part of the contract within a reasonable time after plaintiffs had performed their part.
    (Brown, J., dissen s.)
    Appeal from a judgment of the' general term of the fourth ■department, affirming a judgment entered upon the report of a referee.
    
      John B. Kernan, for app’lt; Henry TV Bentley, for resp’ts.
    
      
       Reversing 43 Hun, 633, mem.
      
    
   Haight, J.

This action was brought to recover damages for the alleged failure of the defendant to perform his contract within the time specified, for the constructing and setting up on plaintiffs’ premises of a circular sawing machine or mill.

The defendant had entered into an agreement with the plaintiffs, in which he had agreed, within the space of thirty days next after the date thereof, to construct and set up, upon the plaintiffs' premises, a circular sawing machine, complete in every respect, according to the specifications embraced in the contract, with the capacity of sawing 10,000 feet of lumber from ordinary logs in ten consecutive hours for the price of $920, payable in six months from the completing and proving of the mill. The plaintiffs agreed to furnish the labor of one wood-working mechanic, whose labor was to be performed under the direction of the defendant or his agent, and also to furnish the necessary timber for foundations and other wood work, together with the nails and screws for the same. The contract was in writing, signed in duplicate, dated April 20, 1881.

The referee found as facts that the mill arrived at Glendale, the nearest railroad station to the plaintiffs’ premises, about May 30, 1881, and was within three or four days thereafter drawn to the plaintiffs’ premises by their team; that when the mill had arrived, the plaintiffs had constructed the foundation for the mill, excepting they had not provided the timbers for the superstructure on which the mill was to rest, and so stated to Singer, the defendant’s agent, requesting him to go with their team and servant to a lumberman some five miles distant and procure the timbers; that Singer consented and went for the timbers, but that it was some twelve days before he could procure to be delivered the lumber required for that purpose, and that during the erection of the mill the wood-working mechanic of the plaintiffs was called from the work of assisting Singer for a few days; that the plaintiffs’ neglect to transport the mill from the station to their manufactory, where it was to be set up, necessarily delayed the defendant four days, and the failure to furnish timber for the mill to rest on, and their wood-working mechanic being called away from the work, necessarily delayed the defendant twenty-six days more in the construction of the mill, making in all thirty days. He further found that the mill was never completed so as to perform the requirements of the contract, and that on the 26th day of August, 1881, the plaintiffs gave notice to the defendant that they rejected the mill. He further found as a fact that the rental value of the mill during the period was $25 per day, and as a conclusion of -law that the plaintiffs were entitled to recover damages for the non-completion of the mill within the time specified in the contract for fifty-four days, amounting to the sum of $1,350, with interest thereon, from the date that the mill was rejected. An exception was taken to this conclusion of the referee. The defendant requested the referee to find as a fact that the plaintiffs did not perform the contract on their part as to time, and that the parties waived such performance by their acts, which request was refused and an exception taken by the defendant

Assuming as is claimed by the plaintiffs that time was the essence of the contract, it distinctly appears that the mill could not be placed in position until the foundation timbers had been furnished, and the structure upon which the mill was to rest completed. The performance of this part of the contract on the part of the plaintiffs, was required before the defendant could proceed and complete the contract on his part. It is a well settled rule that where one party demands strict performance as to time by another party, he must perform on his part all the conditions which are requisite in order to enable the other party to perform his part, and a failure on the part of the party demanding performance to do the preliminary work required, in order to enable the other party to complete his within the time limited, operates as a waiver of the time provision in the contract Stewart v. Keteltas, 36, N. Y., 388; Grube v. Schultheiss, 57 id., 669; Gallagher v. Nichols, 60 id., 438; Weeks v. Little, 89 id., 566 ; Cooke v. Odd Fellows Fraternal Union, 49 Hun, 23; 17 N. Y. State Rep., 490; Williams v. Shields, 80 N. Y. State Rep., 556; Mulholland v. Mayor, etc., 22 id., 347; S. C., reported in mem., 113 N. Y., 631; Beinhauer v. Gleason, 15 N. Y. State Rep., 227-234; Doyle v. Halpin, 33 N. Y. Supr. Ct. Rep., 352-365; The Board of Water Commissioners v. Burr, 35 id., 522.

It consequently appears to us that the failure of the plaintiffs to perform on their part operated as a waiver of the performance of the contract as to time, and the defendant consequently had the right to perform his part of the contract within a reasonable time ■after the plaintiffs had completed their part The allowing of the defendant thirty days additional time in which to complete the contract, as was done in this case by the referee, does not restore the provisions of the contract which had been waived. It was, in fact, the making of a new contract for the parties by the referee. The defendant having contracted to do this work within a specified time, was bound to have his servants and employees on hand ready to perform within that time. He had the right to assume that the plaintiffs would perform on their part, and therefore could properly contract with other parties for the time of himself and employees for any future time not covered by his contract with the plaintiffs. They could not prevent his performance by delays on their part for even a greater period than that specified in the contract in which he was to perform, and then require him to proceed immediately; for this would require him to do the work at another time than that named in the contract, and when he might be under obligations to other parties.

That the conclusion of the referee is unsound and operates unjustly to the defendant is apparent from a brief consideration of the facts as found. Hnder the contract the defendant was to put the mill up within thirty days from the date of the contract, which was April 20th. The referee allowed him thirty days additional time, which would take it to June 20th, and yet the plaintiffs did not have the foundation or structure on which the mill was to be placed ready until thirty days after the 30th of May, or until July 1st. And yet the referee has charged the defendant at the rate of twenty-five dollars per day from the' 20th of June for not having the mill set up and ready for use on that j day. _ ;

_ Again, the conclusion of the referee that the plaintiffs were entitled to recover for fifty-four days is not sustained by the facts as found. As we have seen, an exception was taken to this conclusion. The thirty days delay on the part of the plaintiffs occurred after the mill arrived on the 30th day of May. This would take it to the 1st of July.

The plaintiffs in their letter to the defendant of April 11th, in stating their understanding of the contract, say that they understood that the defendant could finish the mill in three weeks and could set it up in ten days thereafter. It thus appears that the defendant required ten days in which to place the mill in position ready for work If the foundation was not ready until the 1st of July, he had ten days thereafter in which to set it up, and by making allowance for an intervening Sunday and one holiday would bring' it to July 12th, the day on which it was in fact reported ready for use, and the day on which the first trial of the mill took placa From this date to the 26th of August, the date on which the notice was given, deducting the intervening Sundays, would be thirty eight days, which would be the only time for which a recovery could be had upon the referee’s theory of the case.

There is some evidence tending to show that the mill was used by the plaintiffs after they gave notice that they would not accept it There is,, however, no finding of fact as to the amount and extent of such usa We consequently do not consider the question before us for determination as to whether such use amounted to an acceptance of the mill by the plaintiffs and a waiver of the defects if any existed.

The judgment should be reversed and a new trial granted, with costs to abide the event

Brown, J., dissented upon the ground that under the findings of fact made by the referee the proposition discussed by J udge Haight is not available to the appellant in this court The point is not made in the appellant’s brief and was not argued orally and does not appear ever to have been raised in the case.

All concur, except Brown, J., dissenting, Bradley, J., not voting, and Follett, Oh. J., not sitting.  