
    John Crane and William A. MacMahon, Copartners Doing Business as Crane & MacMahon, Respondents, v. William H. Barron, Appellant.
    First Department,
    November 5, 1906.
    Contract — correspondence constituting contract to sell lumber — partial waiver of breach thereof — measure of damages.
    The plaintiffs wrote to the defendant, “ We - *'* note that yoit think-you. can get out some SO-'foot plank and we herewith give you the following memorandum which you can saw out at once,” and annexed thereto a specific description of certain lumber desired, with prices. The defendant replied as follows: “We have before us your esteemed favor * * '* ordering 1,500 pieces of hickory and we have sent the order to the mill with instructions to commence cutting at once. We will ship this lumber, via the Pennsylvania Railroad,” etc.
    
      Held, that the correspondence constituted an enforcible contract of sale;
    That although no time of delivery was fixed, the law implied a delivery within a reasonable time.
    Subsequently the defendant wrote the plaintiffs that the mills from which they had ordered the lumber "do not seem to be making any headway on it, and we, therefore, wish to advise you of the outlook so that you can protect yourself and buy the lumber in other quarters if necessary.” Replying to this letter the plaintiffs stated: “ We are glad that you informed us that you may have some difficulty in getting this plank, as it will give us an opportunity of trying to get it elsewhere. However we have been depending upon you and will ask you to use every exertion possible to give it to us at an early date.”
    
      Held, that although on the letter of the defendants stating their inability to perform the contract, the plaintiffs could have stood upon their rights thereunder and have claimed a breach, they had waived such breach and no right of action accrued thereon;
    That such waiver, however, was not a waiver of the whole contract so as to entitle the defendants to a nonsuit on the whole cause of action, because the plaintiffs merely relinquished the right to immediate performance and the defendants were still bound to endeavor to induce the mill proprietors to furnish the material;
    That when the trial court erroneously charges that an actionable breach of such contract occurred upon a specific’day, and fails to take into consideration the waiver of the plaintiff, the error is available on appeal from an order denying a motion for a new trial on the grounds-specified in section 999 of the Code of C.ivil Procedure, even though no specific exception was taken to the instruction, for an appeal from an order denying such motion is based upon the ground that the verdict is contrary to law;
    
      Held, further, that although the measure of damages be the difference, between the contract price and the market value of the goods agreed to be sold, a verdict can only be based upon adequate proof of the market value of the goods, and cannot be left to conjecture;
    (Per Ingraham and Laughlin, JJ., concurring in result): The evidence did not establish a contract for sale and delivery, it being understood that the lumber was not in existence, but was to be manufactured, not by the defendant, but by mills in a foreign State;
    That the defendants did not contract to deliver the timber until they were able to obtain it.
    Appeal by the defendant, William H. Barron, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 26th day of December, 1905, upon the verdict of a jury, and also from an order entered in- said clerk’s office on the ,29th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    The action was originally brought against the present defendant añd James S. Barron, copartners, but the latter, having, since died the action has been continued against William H. Barron alon'e,
    
      Theodore T. Baylor, for the appellant.
    
      William F Clare, for the respondents!
   Patterson, J.:

The plaintiffs sued to recover damages for the breach of a con. tract alleged to have been, made by them with the defendants for " the sale and delivery byithe latter of a certain quantity of lumber. ’ The claim of the plaintiffs, as set forth in the complaint, is that on the 7th of November, 1902, their copartnership and that of the defendants entered into an agreement whereby the latter agreed to sell and deliver to the former 1,500 pieces of hickory plank, 400 pieces to- be' three by nine inches and upwards by twenty feet long, 100 pieces ■to be four by nine inches and upwards by twenty feet ■ long; the lengths,, however, of fifteen per cent ,of the plank might -be eigln teen feet; 800 pieces to be three by eight inches and ilpwards by twel ve, fourteen and sixteen feet long; 200 pieces to be four by eight inches and upwards by twelve, fourteen and sixteen feet long, but as much of thd foregoing 1,000 pieces to be sixteen.feet long as . twelve feet long. ' The agreement also provided that the defendants could send- a few pieces of the three by eight inch planks only ten feet long. Certain requirements of the timber were, it,is .alleged, also mentioned in the contract, but special reference to them is not required. It is alleged ill the complaint that the prices fixed upon by the contract were sixty-five dollars per thousand feet for the longest plank and sixty dollars for the shortest. It is further alleged • that the'■ defendants failed and refused to "perform the terms and conditions of the contract' and to- deliver the planks, with the exception of 130 pieces delivered in May, 1903. - Performance and readiness to perform on the plaintiffs’ part- is also alleged. ' In their answer, the defendants deny that they entered into the contract as alleged in the complaint, or that the plaintiffs were ready to perform its conditions; they admit that they refused to deliver some -of the plank referred to in the complaint but that they did deliver 130 pieces. They then proceed to set up among other defenses the following, viz.: That during the month of May, 1903, they delivered and tendered to the plaintiffs 11,859 feet of hickory lumber, but that the plaintiffs would and did receive only a part thereof, and that they ever since have, after the payment for the same became due and payable, refused to pay for the same, which refusals were in violation of the terms of the agreement referred to in the plaintiffs’ complaint, if such'an agreement were made, and constitute a breach, and that at the time of such refusals the defendants had performed all that was required of them under the allegéd contract, and, further, that if the agreement ever were made, it was rescinded, waived and abandoned on or about January 27, 1903. The defendants also interposed a counterclaim which as we view the case it is unnecessary now to consider. Whatever relations existed between the parties concerning the subject-matter of their dealing, as it was originally entered upon, were established by letters exchanged between thern ; and-the learned judge who presided at the trial or the cause held, and instructed the jury as matter of law, that there was a valid binding contract made on or about November 7, 1902. The letters alluded to fully justify the ruling of the court. On November 6, 1902, the plaintiffs wrote to the defendants: “We are in receipt of your favor of the 5th instant and note that yon think you can get out ■.some 20-foot plank and we herewith give you the following memorandum which you can saw out at once.” Then followed a description of the timber desired, specific instructions concerning the character of the wood and how it should be treated, and there was a price named for the long planks of sixty-five dollars a thousand and for the short planks of sixty dollars in New York. On the 7th of November, 1902, the defendants wrote to the plaintiffs as follows: “ We have before us your esteemed favor of November 6th, ordering 1,500 pieces of hickory, and we have sent the order to the mill with instructions to commence cutting at once. We will ship this lumber via the Pennsylvania Railroad, lighterage free, unless you prefer a different delivery. We enter this as our order No. 1449, and you will please refer to this number in further correspondence. Thanking you for the order and awaiting your further favors, we remain,” etc. The letter of the plaintiffs plainly indicates that they gave an order to the - defendants for the timber therein mentioned, which the defendants were to saw out at once; and the defendants acknowledged the order as one obligatory upon them and undertook to ship the lumber to the plaintiffs by a certain carrier, unless a different one was preferred. There was- nothing left optional with the defendants nor was their promise to supply the lumber conditional The quantities were specified, the price was named and nc element of a binding contract is wanting. The omission to fix a time at which the delivery should be made was supplied by the law, which would require performance within a reasonable time, and there is some evidence to show that a period of six weeks from the time oi making the contract would have sufficed. That the defendants understood and acted upon the ■ arrangement as a binding contract appeal’s at various places in the-record In other correspondence they speak of the plaintiffs’ letter as an order fói'the merchandise and the evidence 'shows that they accepted that order and undertook to execute it. They did not furnish lumber on tlie contract within what is testified would have been a reasonable time for performance.

The trial justice aiso ruled and so charged the jury that Without justification the defendants failed to perform the contract; or, in other words, were guilty of a breach of that contract, and- lie' held that the breach was complete on January 26, 1903, and it was upon that breach that the plaintiffs’ right to recover was predicated. He evidently must have taken the view that the defendants’ failure to-make delivery before January 26, 1903, put them in the wrong and gave, the plaintiffs an immediate right of action. -Conceding that there may have been a breach of the contract arising from the failure to deliver the merchandise within a reasonable time, it is-obvious that that breach was Waived by the plaintiffs. On the 26th ' of January, 1903, the defendants wrote to the plaintiffs as follows i “ Referring to your letter and order of November 6th, for hickory plank, would say that we wisli to advise you at this time that, in all probability the mill will not be able to get out this-timber. We placed this order with the Southern Saw Mill Co. of New Orleans, La., who have a mill at Tomnolen, Miss., where they are- getting out some very nice hickory, and where the writer saw their" logs coming in last October before seeing you about this order. They took hold of this order, but do not seem to be making any headway on it, and we, therefore, wish to advise you of the outlook, so that you can protect yourselves and buy the lumber in other quarters if necessary for your contracts. If they get out any lumber which is applicable on your order, we will offer it to you before we sell it to other parties, giving you the option of taking it or not at that time, but from present indications they will have very little, if any, of it this season.” This letter disclosed the situation in which the defendants were placed, namely, their inability to perform the contract at that time because it .was out of the power of the party to whom they had confided the execution of the order in Mississippi to furnish the timber. At that stage, the plaintiffs, had they so desired, could have stood upon their rights, have claimed a breach of the contract and could have recovered such damages as they might have sustained by reason thereof. But they did not take that attitude. On the contrary, they acquiesced in the situation to the extent, at least, of waiving the breach. They wrote to the defendants under date of January 28, 1903, as follows: “ We are in receipt of your esteemed favor of the 26th instant regarding the hickory plank. We are glad that you informed us that you may have some difficulty in getting this plank, as it will give us an opportunity, of trying to get it elsewhere. However, we have been depending upon you, and will ask you to use every exertion possible to give it to us at an early date. Bo not let up on these people.”'

While there may, therefore, have been a technical.breach of the contract on the part of the defendants, it is apparent that the plaintiffs condoned the breach and still urged the defendants to perform. That being so, no right. of action accrued upon that particular-breach.

But the defense that the plaintiffs on the twenty-eighth of January rescinded, canceled and waived the whole contract cannot prevail. The defendants moved for a nonsuit on that ground, and duly excepted to the refusal of the court to grant it. That refusal does not constitute error. The defendants were still bound to the contract, but in a modified form. The plaintiffs relinquished the right to immediate performance, and the positive obligation of the defendants to deliver was changed into one .depending upon the result of exertions to induce the mill proprietors at the South to furnish the material. The plaintiffs, in their letter of. January twenty-eighth, expressed.their gratification at the defendants’ informing them of the difficulty in getting the plank, and intimate their intention to endeavor to get it elsewhere.- Nevertheless,, there was not an unconditional waiver of all their. rights under the contract. They were still looking to the defendants performing in the future, if the material could be procured, and it undoubtedly was so regarded by the defendants, who did not understand that there was a rescission or cancellation of the entire contract. They manifestly regarded it as a.continuing contract which they were bound to carry out if they could, and to make efforts to perform. On the 1st day of July, 1903, a controversy having arisen between them and the plaintiffs, . they served a formal notice on the plaintiffs as follows: “Owing to your refusal to make settlement for the first car of hickory shipped, we hereby notify you that we cancel the balance of the order,” etc. Evidently, tip to that time, they did not consider themselves wholly released from the contract by the plaintiffs’ letter of January 28, 1903, and, therefore, the defense of waiver or rescission of the whole contract was not made out.

We have, therefore, a case in which it appears that there was still a contract existing between the parties and that it was an error of the trial justice to charge the jury that an actionable breach of the contract by the- defendants Occurred on or aboti.t January 26, 1903, but no specific exception was taken to that instruction. Hence-, the error could not be considered if there were here only an appeal from, the judgment, but there is also an appeal from an order denying a motion for a new trial upon all the grounds specified in section 999 of the Code of Civil Procedure. One ground of motion for a new trial mentioned in that section ■ is that the verdict is against law, and that ground may be considered on appeal from the order, notwithstanding there is no exception in the record. That practice on such án appeal and in such circumstances has been often followed in furtherance of justice. (Manning v. Lyon, 70 Hun, 345, 348 ; Ryan v. Conroy, 85 id. 544; Gowdey v. Robbins, 3 App. Div. 353; Griebel v. Rochester Printing Co., 8 id. 450, citing Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506, and Whittaker v. D. & H. Canal Co., 49 Hun, 400 ; Northrup v. Porter, 17 App. Div. 80.)

The error in the ruling of the court we have been considering is so radical and fundamental as to require a new trial of the action, and, hence, it is unnecessary to consider other grounds urged by the appellants in support of their appeal from the judgment. It may be said, however, that even if the action might have been brought as upon a breach of the contract by the, defendants on January 26, 1903, the verdict of the' jury awarding .the sum of $1,000 to the plaintiffs for that breach was not authorized by the evidence. The learned judge charged the jury that the only question involved was one of damages, and that the measure of damages, there being no allegation of proof of special damage, was the difference between the contract price and the market value of the timber, to be ascertained at some time after January 26 or about the 1st of February, 1903. There is no adequate or satisfactory proof of the market value of the kind of timber called for by the contract. It was clearly understood by both parties that Mississippi timber was the subject of the contract. Mr. Crane, one of the. plaintiffs, testified that there was no market practically for Mississippi timber from December, 1902, to the spring of 1903; but he also said in his examination that the market value was between eighty dollars and ninety dollars a thousand. It is clear that all his ideas of value were conjectural. There is a positive statement of' one of the witnesses for the plaintiffs — Kelly — that on or about February 1, 1903, the market value of the kind of timber in question was sixty-five dollars for the wide and fifty-five dollars for the narrow or short. He says that' is the price that he as a buyer would have paid for it, and he would swear that that was the market value from his knowledge.

How, it is admitted that the contract might have'been fulfilled by the deliverybf 55,000 feet and that about 5,000 feet were delivered. If the figures of the witness Kelly are taken, then on the short timber called for by the contract there would have • been no loss whatever; on the long timber there would have been a loss to the plaintiffs of. about $400. Taking the estimate of $90 for the long timber, as made by the plaintiff Crane, the - loss would have been $500. The jury allowed $1,000 as damages, from which certain dédiictions in favor of the defendants were made, but resulting in a verdict for the plaintiffs of $723.42, an amount which the evidence did not justify.

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

O’B.rien, P. J., and Clarke, J., concurred.

Ingraham, J. (concurring):

I concur in the result of .Mr.* Justide Patterson’s opinion. The evidence does not establish that there was a contract for the sale and delivery of this lumber, for it was understood that the lumber was not in existence ■ but was to be manufactured, and that the defendants were not to manufacture it but that it was to be"sawed for the defendants by mills in the State of Mississippi.

I do not think that it was ever intended to be an absolute sale of the lumber, but that the defendants accepted the plaintiffs’ offer to place the order with the mills in Mississippi and did not at all guarantee that the Mississippi mills would manufacture tlie lumber, nor was there any evidence of a breach of contract. There was no time fixed at which the defendants were to deliver-the lumber. It is quite evident that this was left iii this way because both parties understood that the lumber was to be ■ manufactured and the defendants were not to be obliged to deliver it until they were able to obtain it. •

I agree with Mr. Justice Patterson that the letter of January 26, 1903, was not evidence of a breach of the contract if there had. been one.

Laughlin, J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  