
    JOHN GRAY, Respondent, v. THE DELAWARE, LACKAWANNA & WESTERN R. R. Co., Appellant.
    
      Sale—removal of merchandise within specified time, when condition precedent, when waived.—Forfeiture.
    
    Plaintiff bought at auction of defendant five hundred tons of coal under terms of sale requiring a deposit of fifty cents per ton, and providing that the coal should be taken during October, 1876, and that, if not so taken, the company might “at their option at any time thereafter discontinue further deliveries and retain the fifty cents per ton deposited on the day of sale.” Defendant made deliveries, for cash, up to February following, when plaintiff demanded the balance of the coal, claiming a credit of $250, the amount of . the deposit. Delivery was refused, and plaintiff brought this action to recover the said sum.
    
      Meld, that though removal in October was a condition precedent, yet, defendant having made subsequent deliveries and having failed, on its refusal to deliver balance, to claim a forfeiture, whatever right of forfeiture it may have had was thereby waived. But, it seems, that there was no such right; that the deposit was to secure defendant against loss by fall in price, and was a severable and not a gross sum; and that in no event could defendant retain more than fifty cents for each ton undelivered.
    Before Russell and Arnoux, JJ.
    
      Decided February 6, 1882.
    Appeal from a judgment entered on the verdict of a jury.
    The action was for the recovery of the sum of $250, alleged to have been deposited by the plaintiff, as security for the x>erformance of his contract, upon a purchase of five hundred tons of coal from the defendant, at auction, on September 27, 1876.
    
      The undisputed facts were as follows : The plaintiff purchased the coal, on the day named, at the agreed price of $2.9734 per ton, on the following terms :
    “ Fifty cents per ton, in city bankable funds, to be deposited on the day of sale, as a security for the fulfillment of the contract by the purchaser, and the balance to be paid within ten days thereafter, at the office of the company, when the order for the delivery of the coal will be given on their agent in Hoboken. The coal to be taken away during the month of October, .1876. Should the purchaser fail to take it away within the month, the company may, at their option, at any time thereafter, discontinue further deliveries, and retain the fifty cents per ton deposited on the day of sale, or should the company elect so to do, they may resell the coal, either at public sale or otherwise for account of such defaulting purchaser, who shall pay to the company any deficiency caused by the coal being sold at a price less than that originally agreed to be paid.”
    The next day, a memorandum, of which the following is a copy, was left at the plaintiff’s place of business:
    “Memorandum of Scranton coal, sold at auction on the 27th day of September, 1876, by the Delaware, Lackawanna and Western Railroad Company to Mr. John Gray (38 Dey St.), deliverable at Hoboken, N. J., during the month of October, 1876, according to the terms and conditions read by the auctioneer at the said auction. Grate, 500 tons at 2.97 1-2. Total tons, 500. Received, as a deposit on the above, according to the terms and conditions of sale, the sum of $250.
    “--, For Treasurer.”
    On October 14, one hundred and fifty tons of the coal were delivered to the plaintiff; on November 4, one hundred and fifty tons more were delivered ; and on February 20, one hundred tons were delivered. All the coal delivered was paid for in full at the time of delivery. When the plaintiff received coal on February 20, the dispute ending in this action arose. The plaintiff asked for two hundred tons, the whole amount of coal remaining undelivered, on his contract, and claimed he should be credited with $250, deposit paid on the day following the auction sale. The defendant denied that he had made the deposit claimed, and refused to deliver coal unless it was paid for in full.
    The disputed questions of fact were, first, whether the plaintiff made the deposit as alleged, and, second, whether the defendant, by its agent, had extended, by express words, the time for the performance of his contract until such time as it should notify him to take the coal away.
    
      Hamilton Odell, for appellant.
    
      Jacob F. Miller, for respondent.
   By the Court.—Horace Russell, J.

[After stating the facts as above.]—On the argument of this appeal, two questions were presented by the appellant as grounds for reversal. It was claimed, first, that the court below erred in denying the defendant’s motion for a nonsuit, made on the ground that the moneys claimed were, by the terms of the agreement between the parties, forfeited to the defendant, by reason of the plaintiff’s failure to take away the coal purchased, during the month of October ; and, second, that the verdict was against the weight of evidence.

It was undoubtedly an express condition of the contract between the parties that the coal purchased should be removed during the month of October. This was a condition precedent, upon which the defendant would have had a right to insist, had it chosen at the proper time to assert it (Higgins v. D. L. & W. Co., 60 N. Y. 557). But it was not bound to insist upon this condition precedent. It had the power and the right to waive it, if it chose. Without considering whether there was or was not an express waiver—as to which there was a conflict of testimony—we think that the subsequent acts of the defendant in delivering coal in November and February, constituted a waiver of the condition precedent.

Indeed, it was held in Simpson v. Crippen (L. R. 8 Q. B. 14), where the defendants had agreed to supply the plaintiff with six to eight thousand tons of coal, to be delivered in the plaintiff’s wagons at the defendant’s colliery, “in equal monthly quantities during the period of twelve months from the first of July next,” and during the month of July the plaintiff sent wagons for only one hundred and fifty-eight tons, whereupon, on August 1, the defendants wrote that the contract was canceled on account of the plaintiff’s failure to send for the full monthly quantity in the preceding month, that, although the plaintiff had committed a breach of the contract by failing to send- wagons in sufficient number the first month, the breach was a good ground for compensation, but did not justify the defendant in rescinding the contract. To the same effect is Haines v. Tupper (50 N. H. 307). It would seem to be the theory of these cases that a part performance of such a contract, entire in its nature, so far satisfied the condition precedent as to take away the right of a party to rescind, and left him only to his damages for non-performance (See also Sumner v. Parker, 36 N. H. 449, and Dwinelle v. Howe, 30 Me. 258). We are not required to go as far as the court went in those cases.

The defendant here had a right of election in the matter, after breach of the condition precedent, but having-exerciSed that right by electing to consider the contract as still binding and in full force, they could not recall their election and adopt a different view (Quick v. Wheeler, 78 N. Y. 300, and cases below). That the coal delivered in November and February ought to be regarded, as a delivery upon the contract, McKnight v. Dunlop (1 Seld. 537) is a sufficient authority. If it be said that the waiver was without consideration and, therefore, liable to be recalled at any time, it may be said in reply that the acceptance of coal by the plaintiff after the waiver, when coal had decreased in price, was a sufficient consideration to require that the waiver of performance within the time fixed should be upheld (Gallagher v. Nichols, 60 N. Y. 448; Clark v. Jones, 1 Den. 516; Platt N. Y. Co. Ins. Co., 55 N. Y. 505).

There was at no time, on the part of the defendant, an assertion of the right of forfeiture until the answer was interposed in this action. They placed themselves upon the sole ground that the deposit had not in fact-been paid. This ground of objection to the judgment, then, must fail.

As to the second ground on which a reversal is claimed—that the verdict was against the weight of evidence—while we may go the length of saying we should have been better satisfied with a verdict for the defendant, in view of the facts tending to impeach the plaintiff’s recollection, still, there was a direct conflict of testimony, which made the case one peculiarly for a jury. The Credibility of conflicting witnesses was the main thing to be determined. In such a case the verdict of a jury ought not to be upset, unless the court can clearly see that they were influenced by passion, prejudice, mistake or corruption, or was so against a striking preponderance of evidence, that a common exercise of judgment demands its reversal (Morss v. Sherrill, 63 Barb. 21 ; Roosa v. Smith, 17 Hun, 138).

There is nothing in this case to lead us to suppose that the jury were influenced by any improper considerations, and we cannot say that their verdict was so clearly against the weight of evidence as to justify us in disturbing it.

The result is, the judgment must be affirmed with costs.

Arnoux, J.

[Concurring.]—From an examination of the evidence my individual opinion is that the payment alleged by plaintiff, as matter of fact was never made; but the law wisely places the decision of matters of fact exclusively in the province of the jury, with such control by the court as shall prevent a miscarriage of justice. Unless the jury have unmistakably and palpably decided against the weight of evidence we should not and cannot interfere. That they had not' so done was the determination of the trial judge, who had the opportunity of seeing and hearing the witnesses, which is denied to ns, and we must defer to his more enlightened judgment.

•The defendant can only succeed, if at all, by the plea of forfeiture.

In September, 1876, plaintiff bought at auction of defendant five hundred tons of coal, under certain terms of sale, which required a payment of fifty cents per ton, and which further provided: “ The coal to be taken away during the month of October, 1876. Should the purchaser fail to take it away during the month, the company may at their option, at any time thereafter, discontinue further deliveries and retain the fifty cents per ton deposited on the day of sale.’ ’ Defendant delivered to plaintiff on said purchase three hundred tons in October and November, and one hundred tons in February following, and plaintiff in said last month demanded the balance, on which he claimed a credit for said $250. The demand was refused, and the payment, as matter of fact, denied. This was the only ground of refusal. If the company had had a right of forfeiture, as claimed by its counsel, it was waived by the subsequent delivery, and by failure to assign that reason. But they had no such right. The moneys paid on account were so paid to secure the company against loss by fall in the future market price, and they were limited to the amount specified—fifty cents per ton. This was a severable, and not a gross sum. The company, under the express terms of this contract, might have delivered to defendant one hundred tons in October, November, December, and January each, and have refused in February to deliver the remaining one hundred tons. In such case, as each lot was delivered the purchaser had a right to a credit of $50, and the company could only hold the last $50 for the remaining one hundred tons.

If the company had refused to deliver this last lot of coal on the ground that under their option they chose to discontinue further deliveries, and had retained so much of the deposit as related to that portion of the coal, a question would have been presented that might have availed defendant in this action; but we can only affirm the judgment and order appealed from.  