
    William B. Reynolds, Resp’t, v. Lydia Spencer et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 26, 1895.)
    
    1. Sale—Delivery.
    A delivery to a carrier, to be effective, must be of the quality and description and in amount called for by the contract. .
    
      2. Same.
    A delivery of goods on March 6, 1894, is not a performance of an agreement to deliver on or before May 1, 1893. So held, where the seller of goods contracted to deliver them to a carrier for the buyer on or before May 1, 1893, but, no delivery was made within that time, and the buyer, about September 1st, notified the seller that unless the goods were delivered immediately, he would refuse to accept them.
    Appeal from a judgment entered in favor of plaintiff.
    George P. Wood, for app’lts;
    C. H. Everts, for resp’t.
   MERWIN, J.

The defendants in 1893 were partners doing business at Union Springs, Cayuga county, N. Y., under the firm name of the Spencer Manufacturing Company; and the plaintiff lived in Hector, Schuyler county. In January, 1893, the plaim tiff and the defendants entered into an agreement by which the defendants agreed to make and deliver to the plaintiff, on board the cars at Union Springs, on or before the first day of May, 1893, one drag saw, with the appurtenances thereto, of the agreed value of $75, which the plaintiff agreed to pay by delivering to defendants certain property, of the value, as the referee finds, of $75 and upwards. The plaintiff, in pursuance of the agreement, delivered his property to the defendants on the 13th February; and the defendants received the same, and appropriated it to their own use. They did not, however, perform on their part, by delivering to plaintiff the property he purchased; and, as the referee finds, it has never been delivered. This action was brought on the 10th March, 1894, to recover of defendants the sum of $75, as damages for the breach by defendants of the contract; and the referee has awarded to plaintiff that amount, with interest from June 1,1893.

In defense, the main claim of the defendants is that on the 6th March, 1894, they delivered the property on board the cars at Union Springs, billed to the plaintiff, and sent him, by mail, the shipping bill. This, it- is claimed, was under the contract, a delivery to the plaintiff, so that the plaintiff, at the time of the commencement of the action, was constructively in possession of the property, and therefore not in a position to maintain the action. There is evidence that on the 6th March the defendants delivered at Union Springs certain articles, and mailed to'plaintiff the shipping bill. The plaintiff testifies that he never received the bill, and knew nothing about the delivery at Union Springs until long after the commencement of the suit, and that he refused to receive the property. It is not claimed that the plaintiff ever accepted the property. There is no evidence that the articles, as delivered at Union Springs,, did not comprise all the articles that, under the contract, were to be delivered by the defendants, as constituting “the drag saw and its appurtenances.” If so, it world not be a good delivery. A delivery to á carrier, to.be effective, must be of the quality and description and in amount as called for by the contract, Mee v. McNider, 39 Hun, 347; Gutwillig v. Zuberbier, 41 id. 363; Benj. Sales (Bennett’s Ed.) 330. Besides, a delivery on 6th March, 1894, is not performance of an agreement to deliver on or before May 1, 1893. In Benj. Sales, 330, it is said that a delivery of goods to a carrier at a much later time than ordered does not bind the purchaser to accept them; citing, among others, the case of Rommel v. Win-gate, 103 Mass. 327. But the defendants claim that the time for delivery was extended. On this subject the referee finds, on sufficient evidence, “that at different times between the time when said drag saw was to be so delivered and the 1st day of January, 1894, the plaintiff requested the defendants to deliver the same to him as they had agreed to do, and that on or about the last day of August or first of September, 1893, the plaintiff requested. the defendants to deliver said drag saw to him immediately, and gave them notice that, if they did not deliver the same forthwith, he would have no use therefor, and would refuse to accept the same.” This notice was never withdrawn or modified or waived. At least, it should not be said, as matter of law, that there was a waiver. The finding of the referee is, in effect, agaist the defendant on this subject. We are of the opinion that the attempted delivery on the 6th March did not bind the plaintiff, and, in the absence of an acceptance by plaintiff, is no defense to th'e action. We are referred to the case of Dunn v. Steubing, 120 N. Y. 235; 30 St. Rep. 653, but that case is very unlike this.

Judgment affirmed, with costs.

All concur.  