
    Christian Tobias et al., App’lts, v. Lazarus Lissberger, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Contract — Waiver of strict performance — When question of fact.
    Defendant ordered certain iron rails from plaintiffs to be shipped from Europe. The vessel containing the rails was detained in port in Germany-on account of ice in the harbor, so that it did not arrive until over four months after being shipped. Defendant was notified of their arrival and declined to receive them on the ground that they had not been shipped according to contract, which called for prompt shipment, and plaintiffs sold them on his account, leaving a deficiency in the purchase-price which plaintiffs claim to recover. No objection had been made to the intervening delay, nor was the contract disaffirmed until some three weeks after defendant was informed of their arrival. Held, that plaintiffs had a right to have the question submitted to the jury, whether or not there was a waiver by defendant of a strict performance of the contract.
    Appeal from a judgment dismissing the plaintiff’s complaint ■on trial at the circuit.
    
      J. A. Shoudy, for app’lts; Wm. H. Cohen, for resp’t.
   Daniels, J.

The action was brought to recover the difference 'between, the contract-price for the sale of about one hundred tons old iron vignol rails for prompt -shipment by sail from Europe, and the amount realized from the sale of the rails after, their arrival at the city of New York, where, by the agreement, they were to be received by the defendant. The contract was made on the 2d of February, 1881, and the rails were laden on shipboard at Stettin in Germany on or about the 3rd of February, ■1881. The harbor of Stettin at that time was frozen and the ship was unable to proceed to sea until the third of April, when the ice broke up and she commenced her voyage. The winter was an unusually severe ohe and extended the detention from ice beyond that which otherwise would have taken place. The vessel arrived at the city of New York on the 25th of May, 1881, the ordinary voyage from the port of shipment to that city being fifty or sixty days. On the 1st of March, 1881, the plaintiffs informed the defendant of the shipment of the rails from Stettin. They were requested by him, on the 2d of March, 1881, to supply him with the name of the vessel and the date of sailing, and they replied on the 3rd of March that they could give no further information than they had done, except that they added that the ship was the German bark Ferdinand Brunn from Stettin.»

On the 19th of the month the plaintiffs informed the defendant that the date of shipment was the 3rd of February, 1881, but they had no date of the vessel’s sailing. On the 4th of May, 1881, they notified the defendant by letter that the vessel had sailed from Stettin on the 6th of April for Mew York, bic further correspondence appears to have taken place until the 26th of May, when they notified the defendant of the arrival of the ship, requesting him to attend to the receipt of the rails promptly at the foot of Conover street, Brooklyn. The defendant replied on the 14th of June, 1881, declining to receive the rails because they had not been shipped as per contract, and on the 15th of the same month he was notified by the plaintiffs that they would proceed to sell the rails on his account. And the sale was after-wards made, leaving the deficiency in the purchase price, which the plaintiffs claimed to recover in the action,

Upon a second trial of the action a verdict was directed for this deficiency in favor of the plaintiffs, and that was affirmed on appeal by the general term. The case was then appealed to the court of appeals, where the judgment was reversed and a new trial ordered ; and the trial, resulting in the judgment from which the appeal has been taken, was had under this direction of the court of appeals. And it has now been alleged as an error on the part of the court to direct a dismissal of the complaint, instead of submitting the case to the jury. Through all the correspondence, until the final refusal to receive the rails after their arrival, no objection had been made by the defendant to their shipment from the port of Stettin, nor to the intervening delay between that and their arrival in the city of blew York.

On the 4th of May he was informed that the vessel had sailed only on the 6th of the preceding month of April, and no objection, or disaffirmance, of the contract of sale was, in any form, made by him until the 14th of June, about three weeks after he was informed of the arrival of the ship. Upon this state of facts there was certainly room for the inference, even if it should not be deducéd by the court as a matter of law, that the defendant assented to, or acquiesced in, the delay which had taken place, and remained willing to receive the rails as a performance of the contract up to the time of their arrival in the city of blew York. And that by reason of some event arising subsequent to that time, and before the letter of the fourteenth of June, he concluded to take advantage of the delay not before made the subject of any objection whatever, and on that account then refused to accept the iron; and that it does not seem to have been the design of the court in the last decision of the case absolutely to justify him in doing. Tobias v. Lissberger, 105 N. Y., 404; 8 N. Y. State Rep., 43.

The decision on the contrary proceeded upon the argument that the court itself could not hold the defendant to be bound to receive and pay for the iron after it had arrived in the city of blew York, leaving a plain inference that the case was one to be submitted to and decided by the jury. And the conclusion of the opinion clearly expresses this design. For it has been added that “ The time and manner and place of shipment might indeed have been accepted by the defendant as in compliance with the contract. And whether it was or not, and whether, with full knowledge of facts, there was on his part a waiver of the strict performance of the condition on the plaintiffs’ part, were questions for the jury. The trial court therefore erred in directing a verdict for the plaintiffs.” 105 N. Y., 414-415; 8 N. Y. State Rep., 43. This final and concluding part of the opinion expresses a clear recognition of the plaintiffs’ right to have the case submitted to the jury, leaving them, as they should consider themselves justified by the facts, to determine and decide whether, notwithstanding the delay in the sailing of the vessel, the defendant had waived the objection which he otherwise might have made, but did not, and acquiesced in such delay with the design and intention on his part to accept and receive the iron upon its arrival. The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., concurs.  