
    John Nightengale et al., Appl’ts, v. Moses L. Eiseman et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    1. Contract—Sale op goods—Delivery.
    Where the deliveries of goods under an indivisible contract are to be had at different times, the vendor has a right to receive and use the goods delivered without waiting to see whether or not the vendors will fully perform their contract by delivering the residue.
    2 Same—When quantity material.
    Where the agreement is to furnish goods of a certain amount the quantity specified is material and governs the contract.
    3. Same—Right op action.
    Under such a contract the seller must deliver the whole number of articles within the time specified in the contract before bringing any action thereon.
    Appeal from a judgment entered upon the order of the circuit court, dismissing the plaintiffs’ complaint. The action was brought to recover the sum of $663 for seventeen pieces of goods. The order for the purchase of the merchandise from the plaintiffs was in writing, signed by the agent of the defendants, and so far as material to this appeal was as follows:
    
      
    
    
      Eiseman & Co., Grand Street, City:
    
    Order N o. 11.
    Ship by Ex. Bill Mch. Delivery Duplicate No. Terms 6-10, one per cent special. 25 pieces, Feb. 20. 50 “ Mch. 1. Balance before March 15, or earlier if possible.
    “ No. 756, 100 pieces 19 in. Surah at 60c.”
    Thence follows a statement of the colors of the different pieces to be furnished.
    In acknowledging the receipt of the order, the plaintiffs said, “We are in receipt of an order from your house dated January 4th for 100 pieces, 756 surahs at 60c. We shall endeavor to forward the same as near as possible to the time specified.” Testimony was offered and excluded under exceptions tending to excuse plaintiffs’ failure to deliver more articles within the time specified in the order on account of strikes of workmen in plaintiffs’ shop.
    
      Smith & White, for appl’ts; Theodore Connolly, for resp’ts.
   Macomber, J.

The order for the merchandise mentioned above, standing alone, would not only require a delivery of the whole number of articles before any action could be brought by the plaintiffs, but a delivery within the time specified in the order. Except for the modification mentioned in the letter accepting the order, the time of delivery of the several pieces as mentioned would be deemed to be an essential part of the contract, and a failure to comply therewith at the time mentioned, would absolve the defendants from liability. But, by the terms of the acceptance of the order, the plaintiffs did not assent to the proposed agreement in respect to the exact time of delivery, but promised to deliver the same “as near as possible” to the time stated in the order. No objection was made to this modification of the proposed contract and the parties seem to have assented thereto. Hence, so far as the time is concerned, the proposed evidence offered by the plaintiffs, designed to extenuate their failure to deliver more than seventeen pieces, would be admissible, and had it come up to the point of establishing a reasonable excuse for the failure to deliver, within a reasonable time, a recovery might still be had, except for the following consideration: The order was indivisible, although the deliveries were to be had at different times. The vendee, under this contract, had a right to receive and use the goods delivered without waiting to see whether or not the vendors would fully perform their contract by delivering the residue. Catlin v. Tobias, 26 N. Y., 217. Where the agreement is to furnish goods' of a certain amount, the quantity specified is material and governs the contract.

Brawley v. United States 96 U. S. R., 168. Says the court in Norrington v. Wright 115 U. S. R. 204: The seller is bound to deliver the quantity stipulated, and has no right either to compel the buyer to accept the less quantity, or to require him to select part out of the greater quantity; and when the goods are to be shipped in certain proportions monthly, the seller’s failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract, that he would have had if it had been agreed that all the goods should be delivered at once.”

There is nothing in the case which shows that the defendants have in any respect waived their right to insist upon the fulfillment of the whole contract before paying for any part of the goods purchased. On the contrary, the plaintiff’s evidence itself established that the defendants consistently denied the right of the plaintiffs to recover for the goods delivered until the whole amount contracted for had been delivered.

For these reasons the trial judge was justified in nonsuiting the plaintiff’s complaint.

The judgment should be affirmed with costs.

Van Brunt and Bartlett, JJ., concur.  