
    JAMES S. JONES and Others, Plaintiffs and Respondents, v. ALEXANDER FOWLER and Others, Defendants and Appellants.
    A tender of cotton four days after the making of a contract for its sale and delivery (there being no time specified in the contract) is too late, and the purchaser is absolved from all obligation to receive it; what is a reasonable time is a question of law, to be determined from all the facts and circumstances in the case; and there being no facts or circumstances in the case which denoted an intention to allow any but an immediate delivery, a tender after four days was properly refused.
    Before Monell, Jones, and Fithian, JJ.
    
      [Decided February 12, 1869.]
    The action was to recover the difference between the contract price of certain bales of cotton, and the price obtained on a sale thereof after tender of a delivery and a refusal to accept.
    The plaintiffs proved that the contract of sale was made on the 21st day of November, 1867. The bought and sold notes of the parties were read in evidence. The following is a copy of the sold note:
    “New York, November 21, 1867.
    “ Sold for Messrs. Freeman, Johnson & Co.,
    “ To Messrs. Fowler Brothers,
    “ The following cotton, including sound rebaled, viz.:
    “Marks. No. of bales. Stipulation. Price per lb. •
    “WD “ W
    35
    B/C
    at
    18c.
    “Compressed; to be received from wharf.
    “ Terms cash on delivery. “DAYTON & WALDO,
    “ per H. G. H.,
    “ Cotton Brokers, 129 Pearl st.”
    The plaintiffs then proved that on the 25th of November they offered to deliver the cotton, and it was refused. Subsequently they had it sold, and it brought a less price than the defendants had agreed to pay.
    The cotton, at the time of the sale to the defendants, was on board the steamer “ Zodiac,” reported to be then in the harbor. No offer to deliver the cotton was made previously to the 25th of November.
    
    One of the brokers who made the sale testified that he was requested by the plaintiffs to deliver the cotton to the defendants ; that he went on the same day for the cotton, and it was not on the wharf; that he notified the defendants to attend and receive the cotton, but it was not on the wharf, and could not be delivered because it was not to be had; that he went twice for it on Thursday (21st), and again on Friday (22d). On Saturday (23d), defendants said they had filled their orders elsewhere, and refused to receive it. This witness explained the meaning of the words “to be received from wharf” to be, that the cotton was to. be delivered on the wharf by the seller and taken off the wharf by the buyer.
    Another of plaintiffs’ witnesses testified that all the cotton was not on the wharf until the 25th, on which day he took a letter from the plaintiffs to the defendants, notifying them that the cotton was ready for delivery.
    A motion to dismiss the complaint was denied.
    The defendants proved that they demanded a delivery of the cotton on Thursday, the 21st.
    One of the defendants’ witnesses testified that he went, by the direction of the defendants, to the wharf about one o’clock on Thursday (21st), to ask for the cotton; that there was no cotton out; that the brokers, or some one on their behalf, asked permission to let “ the thing ” lie over until the next day (Friday); that he went over to get a delivery of the cotton once or twice on Thursday, and three times at least on Friday; the last time was about four o’clock on Friday evening.
    The action was tried before Chief-Justice Robertson and a jury.
    The Court directed a verdict for the plaintiffs, to which the defendants excepted.
    Judgment was suspended, and the exception sent to the General Term.
    
      Mr. Henry H. Anderson for appellants.
    The Court erred in excluding the question, put on cross-examination to the broker, whether the memorandum contained all the terms of the contract for the sale of the thirty-five bales. These bought and sold notes were not the contract. They were neither made nor seen by the broker, nor were they signed by him nor by the defendants, but were made up by clerks from the broker’s memorandum, and the defendants had a right to inquire whether this note contained the whole contract (Livewright v. Archibald, 6 Eng. Law and Eq., 286; Hayman v. Neale, 2 Camp. 337; Hawes v. Foster, 1 Moo. and R., 368).
    The Court erred in refusing to dismiss the complaint. The case showed non-performance of the contract on the part of the plaintiffs.
    
      The memorandum of sale, if it contained the whole contract, imposed on plaintiffs the duty of immediate delivery, or at all events delivery on demand (Thompson v. Ketcham, 8 Johns., 190).
    The question, “Was any agreement made at the time of purchase as to what time this cotton was to be delivered ?” should have been admitted.
    The Court erred in excluding the evidence to prove the contract set up in defendants’ answer, the defendants having denied the contract set up in the complaint, and having given evidence showing that the brokers were acting for the plaintiffs only in making the sale.
    The Court erred in directing a verdict for the plaintiffs, and in directing the amount thereof.
    
      Mr. Henry Nicoll for respondents.
    The bought and sold notes by which the sale of the cotton in question was made constituted the sole and only evidence of the terms of the contract entered into between the parties (Chitty on Contracts, p. 401; Parsons on Contracts, 5th ed., vol. 1., pp. 541 to 545; Cabot v. Winsor, 1 Allen, 546, cited in full in Parsons on Contracts, on pages referred to; Davis v. Shields, 26 Wendell, 341; Peltier v. Collins, 3 Wendell, 459; Merritt v. Classon, 12 Johnson’s R., p. 102).
    By retaining the bought note without objection the purchaser ratified the contract set forth therein. He could only repudiate it by returning the note at once with his dissent (Parsons on Contracts, 5th ed., vol. 1., p. 543).
    When no time is expressed in a written contract for the performance of a duty, the Court presumes a reasonable time, and it becomes a matter of judicial construction in the light of all the surrounding circumstances; nor will any extrinsic testimony be allowed going to fix a definite term, because that would vary the contract (Parsons on Contracts, vol. ii., pp. 661, 662, and cases cited in notes; Newton v. Wales, 3 Robertson, 453).
    The evidence shows conclusively that under the contract, by the usual practice of the trade, the cotton was deliverable on the wharf when discharged from the vessel, and that immediately the cotton in question was so discharged the defendants were notified that the plaintiffs were ready to deliver the same under their contract.
    Upon the whole case, the plaintiffs having established the contract of sale, as set out in the complaint, which it was not competent for the defendants to contradict or vary by parol evidence, and the plaintiffs having also shown an offer to deliver the cotton within such a time as upon the evidence it cannot be doubted was a reasonable time, the jury were properly instructed to render a verdict in their favor.
   By the Court:

Monell, J.

There were no disputed facts in this case, and therefore no question for the jury. The main facts were sufficiently , established, and the only question to be examined is, whether upon such facts the direction of the learned justice was correct. The contract of sale was made on the 21st of November. On that day, and again on the next day, the defendants demanded a delivery. The cotton was not delivered, for the reason that it had not been discharged from the 'vessel. On the 25th a delivery was tendered and refused.

The contract did not specify any time for the delivery, nor were there any extrinsic facts or circumstances which can materially aid the court in determining upon the time the parties had in which to perform. The case must, therefore, be disposed of upon principles applicable to contracts, which are silent in respect to the time for their execution.

The question resolves itself into this: Did the demand made by the defendants on the 21st and 22d, and the inability, refusal, or neglect of the plaintiffs to deliver on those days, put an end to the contract and discharge the defendants; or, did the plaintiffs have until the 25th to make delivery ?

The general rule is, that where goods are to be delivered, and no time is specified in the contract, it is a presumption of law that the parties intended and agreed that they should be delivered in a reasonable time. What is a reasonable time is a question of law, to be determined upon the facts and circumstances of each case.

There is one fact in this case, which was proven, I suppose, with the view of aiding the Court in determining the question of reasonable time, which was, that at the time of the contract the cotton was on board the steamer “ Zodiac,” then reported as being in the harbor; that on coming up the bay she got aground, and her cargo had to be lightered to the city. That fact does not, however, in my judgment, help us in ascertaining what would be a reasonable' time for delivery, however much it might, under certain circumstances, perhaps, excuse a delivery. It was not contemplated by the parties that any casualty would prevent an immediate execution of the contract, and cannot, therefore, be presumed to have entered into their intentions.

I cannot find any thing in the contract, or in any surrounding-fact or circumstance, to excuse an immediate delivery, or at least a delivery on demand.

The commodity sold was capable of an immediate delivery, and no particular space of time was required to complete the sale by the symbolical delivery usual in such cases. The cotton was to be received by the purchaser upon the wharf. Placing it upon the wharf and giving an order for its delivery to the purchaser, would constitute a delivery, and it, would thereafter be his property and at his risk.

There is nothing in the character of the property sold that would indicate that four days would not be an unreasonable time for its delivery; nor is there any thing in the circumstances of the sale that would lead us to the conclusion that the plaintiffs had the right to tender performance on the fourth day after the sale.

If any thing is to be gained extrinsically, it is, that in the absence of express stipulations fixing the time of performance, parties intend and mean an immediate performance, provided, of course, the contract is capable of such performance; and it would not be unfair to presume that the parties, in the case before us, contemplated, as well as intended, that the cotton should be delivered on the day of sale. Their acts indicate such intention The plaintiffs and defendants, -through and by their respective agents, went down to the wharf on the 21st, the former to deliver and the latter to receive the cotton. L

As I have said before, the casualty which prevented a delivery on that day cannot enter into the question of reasonable time; for it may very well be, that to the defendants the delivery on the day of purchase was of the very essence of the contract. They might have purchased for immediate re-shipment or re-sale, either or both of which would have been defeated by the plaintiffs’ delay.

I am of opinion, therefore, that the delay of four days in tendering a delivery was unreasonable, and that the refusal or neglect of the plaintiffs to deliver on the demand of the defendants relieved the latter from all responsibility.

The exceptions should he sustained, the verdict set aside, and a new trial ordered, with costs to defendants to abide the event.  