
    Flora Weinberg, Doing Business as Grand Union Folding Box Co., Appellant, v. Abraham Gash, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    Contracts — waiver of — failure of — tender — partial delivery.
    Where a contract for the sale of goods fixes no date for delivery it must be made within a reasonable time.
    Where also the contract fails to provide when the goods are to be paid for, their delivery and payment therefor are concurrent conditions.
    A contract for the delivery of a certain number of boxes to be made to order, including a partition and two fillers for each box, is an entire contract and the buyer has a right to refuse partial delivery.
    In an action for the agreed price of the whole number of boxes there can be no recovery for a partial performance, unless defendant has waived full performance.
    Where, however, it appears that while defendant did not refuse partial deliveries he sent to plaintiff for “ fillers,” so that he might be able to use the boxes delivered and evinced an intent not to pay for any boxes which were delivered without such “ fillers,” he cannot be held to have waived the requirements of the contract that each box delivered should be complete with two such fillers.
    Where in an action for the agreed price after a tender of the remainder of the order, delivery of which was refused, it appears ■ that defendant evidenced an intent that he would pay for any boxes delivered complete without waiting for delivery of the entire order, a judgment in his favor will be reversed and a new trial ordered upon which the issues of the amount of fillers delivered and accepted and the agreed price per box may be determined.
    Appeal by the plaintiff from a judgment rendered in the Municipal Court, borough of Manhattan, first district, in favor of the defendant.
    
      William A. Reynolds, for appellant.
    H. and J. J. Lesser (Harry Yarm, of counsel), for respondent.
   Lehman, J.

In July, 1914, the defendant ordered from the plaintiff 20,000 boxes. These boxes were to be made to order and the order included a partition and two fillers for each box. For some reason the plaintiff did not begin delivery of the boxes until December, 1914. At the trial the defendant’s counsel conceded that upon this order “ we received, on the 12th day of December, 1914,12,500 cartons; that thereafter we received and, within say about a week, we received about 500 fillers and about the 8th day of January, 1915, we received 10 bundles of fillers, or altogether about 6,000 fillers. 6,500 altogether; that we received all of the 20,000 partitions.” It appeared at the trial that while these deliveries were being made the plaintiff demanded payment of the entire amount of the order on the ground that the defendant himself had prevented the plaintiff from completing the order. promptly after the contract was made. The evidence clearly establishes that the defendant objected to these bills, though there is a conflict of testimony as to the nature of these objections. It is not disputed, however, that the bill which was rendered was for the sum of $444.22 and was made up of charges for 21,893 boxes at $19.70 per 1,000, and that the defendant claimed that he had ordered only 20,000 boxes at $19 per 1,000. On January 16,1915, the defendant wrote to the plaintiff “According to conversation had with you over the telephone to-day I am enclosing herewith check for $150.00 on account of your corrected invoice for $380.00 less 2%. As soon as you will deliver the balance of the boxes and partitions we will send you the balance of $230.00 less 2%.” The defendant enclosed, in this letter a check for the sum of $150. This check bore the indorsement “No receipt necessary, this check is in full and satisfactory settlement of the following:

“ If Incorrect Please Return
“As per your corrected bill.............. $380 00
“ 1/16/15 on account................... 150 00
“ Due you balance................. $230 00
2% ” ... = — ^

The plaintiff refused to accept this check because she claimed that the indorsement thereon did not represent the understanding of the parties, and immediately began an action for the agreed price of the boxes. She discontinued this action after it appeared at the trial that complete delivery under the contract had not been made and the trial judge had intimated that the action was prematurely brought. Thereafter on February 13, 1915, she tendered delivery of the remainder of the order but the delivery was refused. Upon this record the trial justice has rendered judgment for the defendant.

Upon this appeal we must consider only two questions. First. Was the plaintiff in default prior to February 13th so that the delivery tendered on that date was too late? Second. If the plaintiff was in default on that date is she entitled to a recovery for the deliveries previously made and accepted?

The contract contains no clause fixing the date of delivery and, therefore, it required delivery only within a reasonable time. It appears undisputed that the parties did not consider the plaintiff in default on January sixteenth, when the defendant wrote the letter quoted above. That letter fixed no definite date for the delivery and without that it is well established that the buyer could not put the seller in default. That rule of law, however, does not prevent the seller from putting himself in default if thereafter he repudiates his obligation under the contract. In the present case the buyer after the failure of the defendant to pay her demand for the whole purchase price apparently considered herself entitled to bring an action without further delivery of the entire number of boxes. This action must have been predicated upon-the assumption that the seller was no longer under any obligation to make deliveries. Though that action was discontinued the bringing of the action is sufficient evidence to. permit, even if it does not require, the inference that the seller repudiated her obligation to make delivery unless the buyer paid her demand. After she brought that action it would have been a mere empty formality for the buyer to demand a delivery within any specific time. It follows, I think, that the trial justice could properly hold in this case that the bringing of an action for the whole purchase price was. tantamount to a refusal to deliver unless the purchase price was paid and that thereupon the buyer was in default under her contract, and that the tender thereafter of the remainder of the goods called for by the contract was made too late.

The contract called for the delivery of 20,000 boxes. It failed to provide when these boxes were to be delivered or paid for. In such a case it is well established that delivery of the goods called for by the contract and payment for these goods are concurrent conditions. In the case of Catlin v. Tobias, 26 N. Y. 217, the Court of Appeals laid down the rule that where a contract required the delivery of a certain quantity of goods in certain specified months the contract at least as to each month “ was entire and called for an entire performanee and until such performance was made or tendered there was no liability on the part of the defendant.” In that case the contract called for the delivery of a specified number of articles in the months of April, May and June respectively. The plaintiff delivered a portion of the amount required by the contract to be delivered in April. The defendant retained the articles delivered and used them. The court refused in that case to allow any partial recovery for the goods actually delivered and used. The defendant was not bound to retain the articles delivered to him under the contract.in the course of the month of April, or of any other month included within its limits, without using or disposing of them until the contract, or even the month, had expired, to ascertain whether the vendors would perform their agreement. He made his contract to obtain the articles which he was to buy for immediate and constant use, and no one could have demanded or expected that he would not use them as they were required in his business. But if he did not waive the performance of the contract, he had a right to insist upon its performance as an entirety, and when the vendors, without cause or excuse refused to perform it, he was not bound to return what he had received, nor could he be compelled to pay for á part performance. ’ ’ (Italics are mine.) In the present case the learned justice below has held that under the authority of that case there can be no recovery. I agree with him that under the authority of that case we must consider that the contract for delivery of the boxes was an entire contract and that there can be no recovery for a partial performance if the 1 ‘ defendant did not waive the performance of the contract ” as a condition precedent to such a recovery. If, however, there has been such a waiver the buyer may recover for the portion delivered and accepted. In the case of Avery v. Willson, 81 N. Y. 341, the Court of Appeals in considering the effect of this rule stated: ‘ ‘ This rule does not affect the principle that where there is to be a single delivery at one and the same time and only part of the goods have been received, the vendee may waive the right to insist upon such delivery and become liable to pay for the portion actually accepted and appropriated.” Obviously in ■ each case the question of whether there has been a waiver of complete delivery under the contract depends upon the intention of the parties as evidenced by the circumstances of the particular case, but where those facts show clear intent that payment should be made for the goods delivered and appropriated either before or without regard to the completion of the entire contract then clearly the entire performance as a condition precedent to such payments has been waived. No further citation is necessary to establish that this is the law of this state and the only question is whether the facts of this particular case show such an intent.

In the present case the contract called for one entire delivery and in that respect it differs from the case of Catlin v. Tobias, supra, where deliveries were to be made constantly. The defendant in the present case had a right therefore to refuse partial deliveries. He not only, however, did not refuse these partial deliveries, but himself sent to the plaintiff for “ fillers ” so that he might be able to use the boxes delivered. At all times he evinced an intent not to pay for any boxes or platforms which were delivered without such fillers ” and he cannot be held to have waived the requirement that each box delivered should be complete with two such fillers, but I think that it is equally clear that he evinced an intent that he should pay for any boxes delivered complete with platforms and fillers without waiting for the delivery of the entire order. Throughout the case it appears that his objections to the plaintiff’s demands for payment were based even according to Ms own version upon three elements, first, that these demands included payment of the entire contract; second, that the amount of the contract was oMy 20,000. boxes and the price only nineteen dollars and, third, that he should not be required to pay for boxes which he could not use because the plaintiff fMled to furnish the required fillers. He did, however, offer to pay and clearly considered himself liable for that part of the goods delivered which included fillers.

The appellant is therefore entitled to a new trial upon which the issues of the amount of fillers delivered and accepted and the agreed price per box may be determined.

Judgment is, therefore, reversed, and new trial ordered, with ten dollars costs to appellant to abide the event.

Weeks and Delehaxty, JJ., concur.

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