
    The Oregon Improvement Co., App’lt, v. John B. Roach et al., Exrs., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 20, 1889.)
    
    Contract—Breach or—Waiver.
    John Roach contracted to build a steamship for the Oregon Railway & Navigation Co., who assigned the contract to plaintiff. The two companies having a dispute as to'accounts, the former notified Roach not to deliver the ship until it was settled. Finally they both directed him to execute two bills of sale to a common agent, one to be delivered to the one-entitled, the other to be cancelled. The final payment was made to Roach and he executed the bills of sale and received a receipt which recited that the bill of sale was not to be delivered except on the acquittal of Roach from the O. R. & N. Go., for full performance of his contract. Held, that a cause of action for breach of defendant's contract did not survive these transactions.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of the plaintiff entered on the verdict of a jury.
    
      George H. Adams, for app’lt; Edward Gebhard, for resp’ts.
    
      
      
         Affirming 35 N. Y. State Rep., 369.
    
   Earl, J.

The original defendant, John Roach, on the 20th day of February, 1883, entered into a written contract under seal with the Oregan Railway & navigation Company to build for it at Chester, Pa., an iron screw steamship of the discription and dimensions mentioned in the contract. The ship was to be built to carry “ dead weight of 1250 tons freight and coal on 13|- feet draft,” and was to be delivered in New York on the 20th of October, 1883, completed and ready to receive cargo.

The plaintiff claims that the contract was in fact made for it, and that all the rights thereunder of the Oregon Railway & navigation Company were assigned to it- before the commencement of this action.

It is alleged by the plaintiff that the ship was not able to carry the specified number of tons with the specified draft; and this action was brought to -recover damages on that account. _ The delay in the building and delivery of the ship within the time speciged in the contract are not now complained of.

About the 1st of February, 1884, after the defendant claimed to have completed the ship and performed his contract, she was-taken at Chester in charge of a captain furnished by the plaintiff and with the ass’ent of the defendant brought to the city of New York, and there he claimed the balance due him under his contract and offered to deliver the ship. There was then pending a dispute between the plaintiff and the Oregon Railway & navigation Company in reference to the accounts between the two companies, and as to the payments made by the latter company to the defendant upon his building contract, and the latter company notified the defendant not to deliver the ship to the plaintiff until such dispute was adjusted.

The ship was entered at the New York Custom House in the name of the defendant as builder and owner. It was finally arranged between the two corporations and the defendant that he should execute two bills of sale of the ship, one to the plaintiff and one to the Oregon Railway & navigation Company, which were to be placed in the hands of a common agent of the two corporations to be delivered to that one of the two which should be entitled to receive the same on the final adjustment of the dispute between them, the one not delivered to be cancelled and returned to the defendant. Thereupon the final payment toEoach was made, and he executed the two bills of sale and placed them in the hands of the common agent of the two companies, and received from him the following instrument: “The final payments, in full, for the S.S. Santa Eosa having been paid to John Roach, I acknowledge to have received this day from said John Eoach two separate bills of sale of said steamship, one to the Oregon Improvement Company and the other to the Oregon Railway & navigation Company in escrow, and to be delivered to whichever company shall be entitled to receive the same, and the other, upon the cancellation thereof, to be redelivered to said John Roach, the bill of sale to said Improvement Company not to be delivered except upon the acquittal of John Roach & Son by the Oregon Railway & navigation Company for full performance by them of the contract with the last named company for the building of said ship.” Some time thereafter the bill of sale executed for the plaintiff was delivered to it and the other was cancelled and returned to the defendant.

The trial judge held that a cause of action for breach of the defendant’s contract did not survive these transactions, and non-suited the plaintiff; and in this we perceive no error.

The ship just prior to the execution of the bills of sale, and the instrument above set out, belonged to the defendant, and the case may be treated as if he had said in effect to the two companies r “Here is the ship ready for delivery in pursuance of my contract; examine her; try her and test her as much as you will. I claim she is built according to the contract. I want my final payment, and if you take her I want you expressly to accept her as she is in full performance of my contract and when, under such circumstances, the ship was accepted by the plaintiff, it lost all right to complain that she was not built according to the contract, and a cause of action for a breach thereof did not survive such delivery and acceptance. There was not a collateral warranty as to the quality or condition of the ship, but the specifications in the contract as to her capacity constituted part of the description of the thing to be made and delivered under the contract Therefore, the case is governed by the rules' laid down in the case of Reed v. Randall, 29 N. Y., 358, and the long line of cases which have followed it

There was nothing for submission to the jury. The intention that the title to the ship should pass only upon her acceptance by the plaintiff as a full and complete performance of the contract is-plainly expressed in the agreement delivered to the defendant, and no other intention is consistent with the circumstances proved

The plaintiff also invoked the doctrine that a sealed instrument cannot before the breach thereof be discharged, cancelled or modified by paroi. But here there was no intention to change, cancel or modify the sealed instrument. The only question is pne of performance, and the plaintiff, by accepting the ship under the circumstances proved, estopped itself from claiming or alleging non-performance of the contract. By the instrument which it delivered to the defendant it obtained possession of title to the ship, and certainly, without restoring that title and possession, it could not thereafter be permitted to deny that the ship received was the ship to be built under the contract.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

All concur.  