
    Eppens, Smith & Wiemann Company, Appellant, v. Lomax Littlejohn and Frederick T. Parsons, Respondents.
    
      Contract of sale—reasonable time for performance—shipments of parts of the goods at different times allowable — evidence of laches — when am agent may afterwards limit and fia the time of performance— waiver of delay — admissions of the president of a corporation in a letter to its agent.
    
    A contract of sale of coffee, providing as follows, “Sold * * * about (1,000) one thousand piculs picked Corinchie coffee (marks, numbers and name of vessel ' or vessels to be given as soon as known and before the arrival'of the coffee), to arrive and to be shipped per sailing vessel called the •, from Padang bound for New York,” no time for performance being specified therein, must be performed within a reasonable time, to be ascertained as a question of fact from all the circumstances.
    The fact that the vendee, in an action against him by the vendor for damages for a refusal to accept the coffee, sets up the defense that the contract has not been performed by the vendor within a reasonable time, does not-impose upon the vendee the burden of proving what was a reasonable time.
    
      Such a contract does not require the whole 1,000 piculs to be shipped at one time or by any one vessel.
    It is a material fact, in rebuttal of the testimony of the agent of the vendor, that he could obtain no transportation upon the only four sailing vessels which sailed from the port in question after the making of the contract and before the time when the goods in question were shipped, that one of these ships brought coffee from the same port to the vendor six months before the coffee in question was shipped from that port.
    
      Semble, that a broker, who has signed for a vendor a contract to deliver, at an indefinite time, coffee to be shipped from a foreign port, has, while still acting for his principal, in the same transaction and in connection with a proposed change in the contract applied for by the vendor, sufficient authority to modify the contractby an agreement that it shall be performed within a time fixed.
    Where the time fixed for the performance of such a contract has expired, the vendee is not obliged, on receiving a notice from the vendor, stating the name of the vessel on which the goods have been shipped, to reply to it or be deemed to have waived the delay; it is enough that when the marks and numbers of the goods were subsequently sent to the vendee he repudiated the contract upon the ground of delay.
    A letter written by the president of the vendor, a corporation dealing in coffee, to its agent, in Sumatra, stating that the delay in shipping the coffee in suit is altogether unreasonable, is admissible against the corporation upon the question Whether it exercised due diligence in procuring transportation for the coffee within a reasonable time.
    Tan Brunt, P. J., dissented.
    Appeal by the plaintiff, the Eppens, Smith & Wiemann Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1897, denying the plaintiff's motion for a new trial made upon the minutes.
    
      George A. Strong, for the appellant.
    
      Frederick G. Dow, for the respondents.
   Patterson, J.:

This is an appeal from a judgment in favor of the defendants entered upon a verdict of a jury and from an order denying the plaintiff’s motion for a new trial. The action was brought to recover damages for the alleged breach of a contract for the sale of merchandise, such breach consisting in the refusal of the defendants to accept delivery of the merchandise, the subject of the contract. Special facts are set forth in the complaint showing that the damages have been liquidated, if any are recoverable, the question of liability being left open. The complaint contains allegations of the making of the contract; tender of the goods'in alleged performance of' that contract, and the refusal of the defendants to accept the ■ merchandise. '

It appears that, at the city of New York, and on February 8, 1893, the plaintiff corporation and the defendants entered into a contract for the sale by the former and the purchase by the latter of 1,000 piculs of Oorinchie coffee, then, as the proof showed, stored at Padang, in Sumatra. The contract was signed for the plaintiff by its broker, T. W. Lewis, and was “ accepted ” by the defendants, ■who signed their firm name thereto. The material part of that contract is in these words :

“ Standard Contract.
“New York, Feby. 8, 1893.
“ Expected mark,
“ E. S. & w:
“ ‘ M.’
Sold for account of M. Eppens, Smith and Wiemann Co., to Mess. Littlejohn & Parsons, the sound and made sound portion of about (1,000) one thousand piculs picked Oorinchie Coffee (marks, numbers and name of vessel or vessels to be given as soon as known and before the arrival of the. coffee), to arrive and to be shipped per sailing vessel called the , from Padang, ■ bound for New York, at (27%) twenty-seven and half cents, gold,. per pound, basis of four months’ notes, bill to date, when the coffee is all in store.”

The blank spaces were in the contract as signed. It was shown that, upon its being signed, an order was forwarded to the agent of the plaintiff at Padang, but nothing was done in performance of the •contract or any of its terms until August, 1893, when the' plaintiff informed the defendants that the merchandise would come forward by a vessel called the Susanne. That vessel sailed' from Padang in November, 1893. In December, 1893, the plaintiff communicated to the defendants the numbers and marks of the packages. The Busanne arrived, with the goods on board in March, 1894, some thirteen months after the contract was made. Upon a tender of the merchandise the defendants refused to accept it. The substantial defenses made are, that the goods were not shipped within a reasonable time, and that in March, 1893, the contract was modified by-requiring the shipment to be made from Sumatra not later than the 30th of June, 1893. Upon the trial of the cause the plaintiff proved the making of the contract, the giving of information of the name of the vessel and the marks and numbers of the packages, as above stated, the arrival of the goods in New York at the time mentioned, the tender and the refusal of the defendants to accept. The court thereupon ruled that, before the plaintiff could recover, it must go further and prove that the shipment was made within a reasonable time. To this ruling the plaintiff excepted, and that exception gives rise to the first question to be considered on this appeal.

'No time for performance of this contract having been agreed upon between the parties, the law incorporates in it the term that it shall be performed within a reasonable time (Benj. Sales, § 683, and cases cited), and compliance with that term thus incorporated in the contract must be shown. If a specific time had been fixed by the parties, performance at or within that time would have to be proven. (Bowes v. Shand, L. R. [5 H. of L.] 28; Ledon v. Havemeyer, 121 N. Y. 179.) The same rule applies to performance within a reasonable time. It was held in Pope v. Terra Haute Car & Mfg. Co. (107 N. Y. 61) that where there is an executory contract for the sale and delivery of merchandise and no time is set for such delivery, the legal effect is to require the delivery to be made within a reasonable time ; and where suit is brought by the seller against the purchaser for the failure of the latter to take and pay for the goods, the plaintiff must allege in his complaint, and prove upon the trial, performance or offer to perform on his part within that reasonable time. Such proof is not made when only the dates at which the specific acts were done are given in "evidence. The question of reasonable' time becomes one of fact under the special circumstances of each case. "Where the contract expresses the time, tlie question of construction is for the court, but where it is left open, what is a reasonable time depends entirely upon the circumstances of each particular case and is for the jury. (Davis v. Talcott, 14 Barb. 611, 612; Ellis v. Thompson, 3 M. & W. 445 ; Stewart v. Marvel, 101 N. Y. 357.) It became part of the plaintiff’s case, therefore, to show what the facts and circumstances and conditions were, in order that the jury might determine whether or not the shipment in this case was made within a reasonable time. The form in which the complaint was drawn could not affect the question. The obligation was upon the plaintiff to show performance, and although the defendant set up the want of performance within a reasonable time, that did not shift the burden of proof. The plaintiff’s case . then proceeded under the ruling, and it attempted to make the required proof. The defendants, in turn, gave evidence on the same subject. With reference to the issue of fact concerning the time at which shipment could have been made, there was very conflicting evidence. That evidence should be looked at undoubtedly in the light of what is disclosed by the proof respecting the ability of the plaintiff to perform the- contract under conditions, some of which, at least, were known to the defendants, and we have examined it closely to ascertain whether the verdict is clearly against the evidence.

It seems to be conceded that the order given on the 8th of February, 1893, could not have reached Sumatra until the latter part of March. The defendants were not altogether ignorant of the conditions existing at Padang with reference to the procurement of-transportation. There were difficulties, and it was known that such transportation could not be procured at once. The plaintiff was, nevertheless, bound to use diligence, and the evidence introduced by it tends to show that some efforts were made to- ship the whole 1,000 piculs in one shipment. We do not think this is a case in which it can be properly said that the plaintiff, when the contract was made, is to be presumed to have made it, having then available means of transportation. The whole evidence shows that it was very difficult to charter vessels at Padang to bring a part of a cargo of merchandise to New York; nevertheless, the duty and obligation were imposed upon the plaintiff to do everything it. could to-perform its contract as soon as might be. The time within which that could be done is the subject of testimony based upon facts, and not merely upon opinions of merchants or others engaged -in the importation of coffee from Sumatra. The. question of fact was, what, within the experience and knowledge of witnesses, was a reasonable time for the procurement of transportation for these goods ? There is a wide difference in the testimony upon that subject. Some witnesses state that from thirty to ninety days after the receipt of the order at Padang would suffice, and others between four months and one year. The testimony upon the subject is unsatisfactory in some respects,, but there is a circumstance in proof which the jury doubtless considered, and which is a very important one. - According to the testimony of -the plaintiff’s agent at Padang, there were only four sailing vessels that, came to that port bound for New York between the time the order in this case was received and the time the.goods were shipped.. That agent testifies that he endeavored to get transportation for the goods on each of those four ships, but that the charterers would not give it; and yet it is proven by him that a shipment of other coffee to the plaintiff was made by one of those vessels, namely, the Barden, which sailed on the 3d of May, 1893. Several hundred piculs of coffee were shipped on that vessel to the plaintiff. That fact indicates that the plaintiff could have undere taken the performance of its contract with the defendants before November, 1893, by shipping some of the goods sold the defendants instead of ■ the other consignment to the plaintiff. There was nothing in the contract which required the whole 1,000 piculs to be shipped or sent forward at one time or by any one vessel. On the contrary, shipments by different vessels were contemplated. Express reference is made to the giving of the name of the vessel or vessels ” by which shipments were to be made.

On the whole testimony relating to the subject, the trial court was right- in leaving it to the jury to' determine whether performance was had or entered upon within a reasonable time, and in the state of the proof we do not feel authorized to interfere with • the verdict of the jury. It was-for them to say, under all the circumstances of the case, including the ability of the plaintiff to perform,' whether the shipment was made within a reasonable time.

But there was proof to sustain the other defense, namely, that of the modification of the terms of the contract. In March, 1893, the plaintiff through Lewis, the broker, made application to- the defendants for a change in the terms of the Contract. It desired to ship the coffee by steamer from Padang to Singapore and have, it come forward from the latter port, by sailing vessel, to New York. That change the defendants would not authorize for what appears to be a sufficient reason, viz., that the coffee would deteriorate were that course jiursued. Both the defendants testified that during the negotiations respecting this desired change, they granted an extension, as they put it, of the time for shipment to June 30, 1893. Their testimony is fortified by a letter written by them which was mailed to the plaintiff, and which they say was shown to Lewis and in which they give their assent to such an extension. The president of the plaintiff, Mr. Pupke, testified that he never received the letter, but there is nothing to show that other of the plaintiff’s officers or agents did not receive it. Mr. Lewis, the broker, does not deny that such an arrangement was made by him with the defendants; he only says that he has no recollection of any such extension having been given or the letter having been shown him. There is no direct contradiction. of the defendants’ statement in this regard. But it is claimed that the broker had no authority whatever to ask for an extension of time or to make any arrangement whatever respecting the 'date at which the goods should come forward, and that his authority was limited to negotiating for the one particular desired change. There is no. evidence of any express authority given by the plaintiff to the broker to make this change in the contract by fixing the ultimate date for shipment, but it is sworn to distinctly by the president of the plaintiff corporation that at the very time at which this alleged arrangement was made Mr. Lewis was still acting as the broker of the plaintiff. There is no doubt that he was sent to the defendants to make some modification of the contract, nor that he was acting as the plaintiff’s broker at that time, nor that the subject of the negotiation or treaty then between them related to the element of time in the performance of the contract. We think there was enough to show authority on the part of the broker, and that there was sufficient to go to the jury on the subject of the thirtieth of June being fixed as the date at which performance of the contract should be had by making the shipment, and the jury having found in favor of the defendants on that subject, we cannot interfere with the verdict.-.

It is further claimed on the part of the plaintiff that the evidence discloses circumstances amounting to a waiver on the part of the defendants of performance of this contract, even assuming that June 30, 1893, was fixed as the date at which the merchandise should be shipped from Padang. The proof does not establish that delay was waived. The name of the vessel was communicated about August 16, 1893, and it is claimed that, because no response was made bv the defendants to that letter, they waived their rights. But a waiver cannot be implied from that circumstance alone. When the marks and numbers were sent to them on December 27, 1893, they repudiated the contract on the ground of delay. They were not bound to take a stand on receipt of the August notice; they could rely then upon the fact that the extension of time agreed to by them had expired, but when the plaintiff evinced, in December, the purpose of' still holding the defendants to the contract then they spoke-, and, as we think, spoke in time.

During the progress of the trial, and as affecting the question of reasonable time, a letter written by the president of the plaintiff was received in. evidence under the defendants’ objection and exception, in which letter is a strong acknowledgment that the plaintiff was in default in performing its contract. That was a letter written by the president, Mr. Pupke, to Pierson, the plaintiff’s agent in Sumatra, and is dated July 10, 1893. The statement is made therein that the delay was altogether unreasonable. As' Mr. Pupke was an officer of the plaintiff, having charge of the transaction in New York on its behalf, his declaration to its own agent was not incompetent as testimony binding the plaintiff. The objection that the letter was written in ignorance of the difficulties the agent in Padang was under, respecting the procurement of a ship, does not relate to the competency as evidence, but only to the effect to be given to the declaration of Mr. Pupke made in the actual course of the business to which it related. Therefore, we think that the letter was not improperly admitted. There are no other questions in the case which require special consideration.

The judgment and order appealed from should be affirmed, with costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Beunt, P.- J., dissented.

Van Brunt, P. J. (dissenting):

I cannot concur with- the prevailing opinion. I think that the contract called for the shipment of the coffee by a single sailing vessel, and- that it was not in the contemplation of the parties that it should be shipped in lots Upon different vessels. Such construction is certainly as much in harmony with the language of the contract as the one adopted by the court, and is decidedly more consistent with the action of the parties.

Judgment and order affirmed, with costs.  