
    JOHN WHITE et al., Plaintiffs, v. WILLIAM H. TALMAGE et al., Defendants.
    It is a general rule that when goods are to be delivered under a contract, and no time is specified in the contract, the law will presume that the parties intended and agreed that they should be delivered within a reasonable time (Jones r. Fowler, 1 Sweeney, 5). What is a reasonable time must be determined upon the facts and circumstances of each case. Under this rule, the law supplies the omission of tire parties, and renders parol evidence, that they intended or agreed upon a different time, incompetent.
    The pendency of another action, or its result, as affecting the result in the action in course of, on trial, must be pleaded, or it cannot be proved as a defence on the trial. If the facts existed before answer, it should have been set up as an affirmative defence ; or, if the facts arose afterward, in the way of a supplemental answer. But unless placed upon the record by being specially pleaded in bar, no proof whatever of the same will be admitted (Brazil v. Isham, 12 W. Y. It. 17).
    Although there was conflicting testimony on the trial in respect to the demand made by the plaintiffs, and the tender made by the defendants, the defendants’ counsel omitted to call the attention of the judge, or to make any request that these questions arising upon conflicting evidence should be submitted to the jury. It is too late to make the objection on the appeal (Seymour «. Cowing, 1 Keyes, 532 ; Barnes ». Ferine, 12 N. Y. S. 18; Winchell ®. Hicks, 18 K. Y. It. 558; Mallory «. Tioga R. R. Co., 5 Abb. K. S. 420). By this omission of defendants’ counsel, it must be assumed that the defendants acquiesced in the view entertained by the judge, that there was not only no conflict in the evidence, but that it established the demand, and did not establish the tender or offer to deliver.
    Before Monell, Sedgwick, and Van Vorst, JJ.
    
      Decided February 1, 1873.
    
      Exceptions sent to the General Term.
    The action was to recover damages for the nondelivery of coal under several contracts between the parties.
    The defendants alleged in their answer, that the sales mentioned in the complaint, were, as is the custom of the coal trade, made by the interchange of tickets containing the place and date ,of the transactions, and title and address of the persons selling and buying coal, with a memoranda of the amount sold or bought, and price and place of delivery, like the following :
    “New York, August 21st, 1869. '
    
    “White, Fowler & Show, Coal Merchants.
    “ Bought from
    “WM. H. TALMAGE & CO.,
    “1000 tons Scranton, Broken at E. Port, at 5.00 per ton.
    “WHITE, FOWLER & SNOW,”
    which is one of the memoranda of a transaction set forth in the fifth cause of action in the plaintiffs’ complaint.
    That these tickets or memoranda do not express the full agreement of the parties, but are made in view of an universal existing custom of the coal trade in the city of New York, which was well known to the trade and to both the parties to this action at the time of the transactions mentioned in the complaint, by which the coal sold is within thirty, days from the date of the sale deliverable to the buyer upon his demanding of the seller an order for the coal thus sold, and after the expiration of the thirty days it is deliverable or not at the option of the seller.
    That a large portion of the sales of coal made between dealers in the city of New York, are made in this way by such tickets or memoranda which are universally treated, acted upon, and considered as subject to the conditions, limitations and interpretations of the said custom.
    That all of the agreements alleged and set forth in the complaint were such memoranda, and were made with reference to, and full knowledge of, and in subordination to, the said custom. And for none of the coal thus sold, save that delivered, did these plaintiffs call for the necessary order therefor within thirty days from the date of sale, nor until, by said custom, these defendants had a right to refuse the delivery thereof. That the full terms of the various sales thus made were not expressed in the tickets because of said custom, and of the understanding and agreement of the parties, that it should intervene and control them and their interpretation, and the agreement of the parties was as herein-above set forth.
    The answer also alleged a tender of orders for the delivery of the coal, which tender was refused. Also an agreement that orders for the delivery of the coal should be demanded within thirty days of the dates of the respective contracts.
    The action was tried by the court and a jury.
    On the trial the plaintiffkproved the several contracts, which were like the following except as to the place of - delivery:
    ; No. 1050.
    New York,
    186
    “WHITE, FOWLER & SNOW,
    “Coal Merchants,
    “No. Ill Broadway,
    “ All shipments at consignee’s risk, unless 1 N. Y. we have special instructions to insure.
    “ All sales subject to our printed regulations.
    
      “ Sold to
    “WHITE, FOWLER & SNOW,
    “ 500 tons Scranton Nnt Coal, at E. Port, subject to breaks of Del. L. and W. R. R. Co., at 4.55 p. t.
    “WM. H. TALMAGE & CO.
    “pp. Fox.”
    On that contract, 323^ tons were undelivered.
    On the next, 94^- tons undelivered. Next, 240¿-f tons undelivered. Next, 570-g-V tons undelivered. Next, 494tons undelivered. Next 246¿-¡¡ tons undelivered.
    The contracts were for different kinds of coal, and at different prices. The plaintiffs proved, without objection, the highest market price of the same kinds of coal between the dates of the contracts and the commencement of the action.
    White, one of the plaintiffs, testified, “I demanded the coal named in the several contracts of the defendants, before the commencement of this action. I demanded all the coal, and it was' not delivered.”
    Upon his cross-examination, the defendants offered to show that the memorandum of contract did not contain the whole of the contract, because no time is specified for delivering the coal; that the plaintiffs bought it under these contracts, with the understanding that it was to be delivered by a certain time; that on demanding an order, the coal was deliverable or not, at the option of the seller; which offer was objected to by the plaintiffs, and excluded by the court, to which ruling the defendants excepted.
    There was some evidence on the part of the defendants tending to show an offer to deliver the coal, and there was a denial of any demand for the delivery of the coal within thirty days of the dates of the contracts.
    A motion to amend the answer was refused.
    The testimony taken in an action by these defendants against the plaintiffs, in which the damages on these contracts were set off, was given in evidence without object.
    The defendants asked leave to put in evidence the pleadings and proceedings in that action, which would show that the claim for damages in this action 'was allowed to the defendants in that action. Leave was denied, and the plaintiffs excepted.
    The defendants’ counsel moved to dismiss the complaint, on the ground that the plaintiffs having recovered in the suit, Talmage v. White and others, where the same subject-matter was involved, that recovery is a bar to this action.
    Also on the ground, that, not having made a demand for the delivery of the coal within thirty days after each sale, the plaintiffs are not entitled to recover. The motion was denied, and defendants excepted.
    The defendants’ counsel then requested the judge to charge as follows:
    
      First. That having recovered in the suit of Talmage v. White and others, the same is a bar to any recovery in this action.
    
      Second. Plaintiffs not having shown any demand for the coal within thirty days from the respective sales, the plaintiffs are not entitled to recover.
    
      Third. That the plaintiffs, not having suffered any damage by failure to deliver the coal within thirty days from each separate sale, are not entitled to recover.
    
      Fourth. The plaintiffs, having refused to accept the coal when tendered by defendants, have themselves thereby anulled the contracts, and cannot recover.
    
      Fifth. That as to the sale under the alleged sale of the 200 tons of coal on the Exhibit No. 3, the sale having been disavowed by the defendants immediately after the same came to their knowledge, the plaintiffs cannot recover.
    
      Sixth. That by reason of the breach of contract for 200 tons having taken place before any rise in price of coal, the plaintiffs have suffered no damage, and cannot recover therefor.
    
      Seventh. That no sufficient demand or tender has "been made "by plaintiffs,—which the court refused to do, to which refusal the defendants excepted.
    The court directed the jury to render a verdict in favor of the plaintiff for $4,523.06, which verdict was' accordingly rendered, to which the defendants excepted.
    . The court then ordered the exceptions to "be heard in the first instance at General Term.
    
      Mr. W. W. Goodrich, for plaintiffs.
    
      Mr. W. S. Poor, for defendants.
   By the Court.—Monell, J.

The offer to show that the contract did not contain the whole of the agreement, because no time was specified for delivery, was properly overruled. The written memorandums, or bought and sold notes, were the best, and, therefore, the only proper evidence of the contract. They could not be varied, enlarged, or contracted by any parol evidence. There was no ambiguity or concealed meaning, that required explanation or development. And their silence in respect to the time of delivery, did not allow of its being shown that it was to be different from that which the law regulates in regard to such contracts.

It is a general rule that where goods are to be delivered, and no time is specified in the contract, the law will presume that the parties intended and agreed that they should be delivered within a reasonable time (Jones v. Fowler, 1 Sweeny, 5). What is a reasonable time, is to be determined upon the facts and circumstances of each case.

Under this rule, the law supplies the omission of the parties, and renders parol evidence, that they intended or agreed upon a different time, incompetent.

The decision of the motion to amend the answer, is not reviewable. It rested wholly in the discretion of the court, and was not the subject of an exception to the ruling.

It is understood that the denial of leave to prove the pleadings and proceedings in the other action, was upon the ground that neither the pendency of that action, nor its result, had been set up by the defendants in their answer, as a bar to a recovery in this action.

On that ground, I think the evidence was properly excluded. It was new matter, and required to be specially pleaded in bar. If the facts existed when the answer was put in, it should have been set up as a defence at that time; or if they arose afterwards, then by way of supplemental answer. But it is very clear that unless put upon the record by being specially pleaded in bar, no proof whatever was admissible (Brazil v. Isham, 12 N. Y. R. 17).

The ground of the motion for a dismissal of the complaint, and the request to charge that it had not been shown that there was a demand for the delivery of the coal within thirty days after each sale, does not seem to have had any evidence to support it. All evidence tending to vary the written contracts had been excluded ; and they were left to be interpreted, under the rules of law, applicable to such cases. There was not, therefore, any evidence upon which the motion or request could be predicated, and they were properly refused.

Under the contract in question, either party could limit the time of delivery. The vendors, in the absence of any stipulated time, could, at any reasonable time after the sale, have tendered a delivery, and a refusal by the vendee to receive would have rendered them liable for the purchase price, or for damages. Such a tender would, in law, under such a contract, have been a performance of it by the vendee.

The right of the vendees was similar. At any reasonable time after the sale, they might have demanded a delivery, and a refusal to deliver would have put the vendors in default.

But if neither party hastened the delivery, by a tender on the one part or a demand on the other, the time for the delivery would continue indefinitely, or at least until such time as by its. remoteness would raise the presumption of abandonment by the parties.

Under these principles of law, the demand established by the evidence was made in time to put the defendants in default, and was sufficient to lay the foundation for the recovery.

There was doubtless some controversy in the evidence both in respect to the demand made by the plaintiffs, and the tender made by the defendants; but the defendants’ counsel omitted to call it to the attention of the presiding justice, or to make any request that the questions arising upon such conflicting evidence should be submitted to the jury.

It is too late to take the objection now (Seymour v. Cowing, 1 Keyes, 532; Barnes v. Perine, 12 N. Y. R. 18 ; Winchel v. Hicks, 18 N. Y. R. 558; Mallory v. Tioga R. R. Co., 5 Abb. N. S. 420).

By omitting to make such request, it must be assumed that the defendants acquiesced in the view entertained by the judge, that there was not only no conflict in the evidence, but that it established the demand, and did not establish the tender, or offer to deliver.

But if it were otherwise, and the question could be presented now, I do not think we would reverse the judgment on that ground.

It was substantially admitted that a demand was made, but that it was not made within thirty days of the dates of the respective contracts. That, as we have seen, was not necessary. There was no proof that the time to deliver was limited to thirty days; and under the contracts, the plaintiffs could make the demand at any time.

The evidence, which, it might have been claimed, tended to prove some sort of a tender, was wholly insufficient, and was properly disregarded by the j udge.

No objection was made to the rule of damages, and we need not, therefore, look at that question.

It was claimed by the defendants’ counsel, that in addition to proof of a demand, and of its sufficiency in point of time, it was also incumbent on the plaintiffs to prove that they were ready and willing to receive, and able to pay for, the goods.

It does not appear that this objection was urged at the trial; and being an objection which might have been obviated by proof, it should have been taken there, and cannot be insisted on now.

But I do not understand that such additional proof is required.

Performance, or tender of performance, is necessary as a foundation to an action by either of the parties to a contract; but such performance or tender of performance, may expressly or impliedly be waived.

The cases cited, especially Cook v. Ferrals, 13 Wend. 285, do not undertake to say that performance, or tender of performance, may not be excused or waived. Ordinarily, the readiness, willingness, and ability of the , vendee to perform, must be averred and proved. And such proof is required in contracts where the time and place of delivery is fixed. There the vendee must be ready at the time and place, unless the vendor has done something to excuse it, in which case performance, or readiness to perform, is not necessary.

Judge Stoby says (Story on Sales, § 412): If the vendor refuse to deliver the subject-matter of sale, the vendee may reclaim the whole price, if he has paid it, or the damages he may have suffered from the breach of the contract; and in Crist v. Armour, 34 Barb. 378, it was held, that when either party to á contract which provides for performance hy "both parties at the same time and place, before the time for performance arises, notifies the other that he will not perform, the other party is relieved from averring or proving performance, or offer to perform ; and numerous cases are cited in support of the proposition.

This precise question arose in Anderson •».' Sherwood, 56 Barb. 66. It was an action for not delivering a quantity of wheat pursuant to contract, which, upon demand, the seller had refused to deliver, and the court, after stating the general rule, say, “ Butin this case the defendant refused to deliver when it was demanded of him, and I think in such case, the plaintiff was not bound to tender or offer the money to him.”

I think the exceptions should be overruled, and judgment ordered for the plaintiffs on the verdict, with costs.  