
    GUSTAVUS ISAACS, Plaintiff and Appellant v. THE NEW YORK PLASTER WORKS, Defendant and Respondent.
    APPEAL.
    Objections not taken at the trial, which might have been lessened or destroyed by evidence, can not be taken for the first time on the hearing of the appeal.
    CONTRACT FOR DELIVERY DURING THE SEASON.
    In the case at bar, the defendants were to deliver during all the season, which gave them until the first of January to complete the delivery. »
    As a necessary preliminary to this action, the plaintiff should at the close of the season have made his demand for the delivery, and should have proved defendant’s refusal to deliver on the trial (Newton v. Wales, 8 Debt. 458).
    Proof of readiness to receive and ability to pay is essential where the time and place of the delivery has not been fixed by the contract and where the place is to be designated by the party who is to receive the same.
    Before Monell, Ch. J., and Curtis, J.
    
      Decided January 3, 1876.
    Appeal from a judgment.
    The action was to recover damages for the nondelivery of a quantity of plaster stone.
    The complaint alleged a contract for the sale by the defendant, and purchase by the plaintiff, of three thousand tons of plaster stone, part of which was delivered and paid for, and a part was refused delivery.
    There was a general denial by defendant.
    The contract was by parol, and was proved by the following evidence, The plaintiff testified as follows : I know the defendant. In June, 1872,1 met Mr. Bonneville, who represented himself as an officer of the New York Plaster Works, and had conversations with him in regard to the purchase of a quantity of plaster stone from their quarries in Nova Scotia. Mr. Bonneville told me the company had a quantity of plaster stone for sale, and that his company was mining a quantity of stone in Nova Scotia, and would have some for sale, and asked me if I wanted to purchase any. I told him yes, I was ready to purchase stone. We talked over the quantity and quality of this stone. He asked how much stone I would take that season ; I told him I was ready to contract for about three thousand tons. He said he was ready to contract to supply that amount from the mines of the company in Nova Scotia, and mentioned the quarries from which the stone would come as the Hunter Quarry and the Burgess Quarry. He stated that the stone would be superior to any thing that had been yet brought from Nova Scotia; that they had the best quarries down there. I told him if he would furnish me with three thousand tons of stone that was equal to that I was in the habit of receiving, I would be perfectly satisfied; that the stone I was in the habit of receiving was known as Wentworth Creek stone ;—if he would furnish me stone equal to the Wentworth Creek stone, I was perfectly satisfied with it.
    After stating the price agreed upon, the witness proceeded. He spoke of chartering vessels down therf at the quarries, or chartering them here in New York On the arrival of the stone they were to notify me, and I was to let them know whether the cargo should be delivered at the dock in Williamsburg, or the dock in New York. A cargo of stone arrived in the “ Addie M. Bird,” about September 1st, and I received the bill of lading for four hundred and thirty tons. The stone proving not to be such as I contracted for, I declined receiving it, on account of its being inferior stone. I afterwards took at a reduced price. Towards the end of October, a cargo came by the “ Souvenir,” and I received the bill of lading for three hundred tons, which I received and paid for. At the time of paying for the last cargo, I was told that the defendant had chartered a vessel which would bring another cargo, and they would bring on stone as fast as they could ; that they had chartered a vessel named “Kedron,” and would let me know as soon as they heard of a shipment and arrival of the stone, and I was to let them know where to deliver it. The “ Kedron” arrived with a cargo of stone in December. I went to the defendants’ office and gave direction where to deliver the cargo, and told them to deliver it at once according to the contract, at the foot of Bethune Street, where I was re;ady to discharge and pay for the cargo immediately on its being discharged. They never delivered the stone from the “ Kedron.” Two or three days afterwards I saw of the arrival of the “Billy Simpson” with four hundred and forty tons of plaster, and I went to the defendants, and demanded the cargo under the contract, and to send it to the foot of Bethune Street. I never received it. Upon his cross-examination he said, the defendants agreed to ship the plaster as fast as they could get vessels at a reasonable rate. They were to ship it just as soon as they could get a vessel, and it was to be delivered in all that season. The season ran generally up to about the first of January ; sometimes up to the middle of January, until navigation is closed in Nova Scotia.
    No subsequent demand was proved, nor was there any evidence of the ability of the plaintiff to pay.
    At the close of the plaintiff’s evidence, the court stated that the plaintiff could not recover in any aspect of the case, on the contract as alleged in the pleading, and upon the testimony given. That no demand and tender after the close of the season was alleged or proved; that plaintiff, after the close of the season, should have demanded of the defendants the delivery of the remainder of the three thousand tons, and tendered to, or offered to pay the balance due under the contract, and further, that plaintiff had not shown any right to these particular cargoes of the “ Kedron” and “Billy Simpson,” for the non-delivery of which plaintiff had sued.
    The plaintiff’s counsel asked to go to the jury upon the question of the making of the contract, the arrival of the stone consigned to the defendant, deliverable under that contract, and the demand upon the defendants ill season after the arrival. Upon the question as to whether there was a demand upon the defendant to deliver the stone arriving by the “Kedron” and “Billy Simpson,” whether, at the time those vessels arrived, the stone aboard belonged to the defendants, whether those cargoes were the subject of contract by any other person at the time of their arrival or before, and whether the defendants, themselves took and appropriated to their use as distinguished from a delivery under any other contract, the two cargoes of stone by the “Kedron” and “Billy Simpson.”
    The request was denied, and the plaintiff excepted.
    The plaintiff offered to prove, that between the date of the agreement and the first day of January, 1873, no notice of the arrival of any other cargoes than those described by the witness, was given by the defendants to the plaintiff, and no opportunity was offered by them to receive any other stone during the balance of the season.
    The court ordered the complaint to be dismissed ; the plaintiff excepted, and appealed from the judgment.
    
      G. A. Seixas for appellant.
    F. E Dana for respondent.
   By the Court.—Monell, Ch. J.

Several of the objections urged by the respondent’s counsel, upon the argument of the appeal, do not appear to have been taken at the trial, and as their force might have been lessened or destroyed by evidence, they can not now for the first time be raised.

These objections relate to the validity of the contracts, one of which, that the contract is void under the Statute of Frauds, I will notice.

The contract was for three thousand tons of plaster, not in bulk, or in a single cargo, but to be delivered in all the season running from the date of the contract, to the first or middle of the subsequent January. The contract was therefore divisible, and not only capable of a separate delivery, but a separate delivery was contemplated and intended by both parties.

A portion of the stone, three hundred tons, by the “Souvenir,” was delivered, “accepted and received under the contract, which brings it within the exception in the statute (Flanagan v. Demarest, 3 Robt. 173 ; Caulkins v. Hellman, 48 N. Y. 449 ; Talmage v. White, 35 Sup'r. Ct. 220).

The ground upon which the complaint was dismissed, was, that no sufficient demand and tender of performance by the plaintiff was shown, and the learned judge held, that such a demand and refusal should have been made at or after the close of the season. In that we think he was right. The vendors, the defendants, under the contract, were to deliver the stone in all the season, which gave them until the first or middle of January to complete the delivery.

The plaintiff seems to have regarded the contract as giving him an absolute right to the cargoes, per the “Kedron” and “Billy Simpson,” and has rested his claim to recover upon the defendants’ neglect or refusal to make delivery of those cargoes. But there is nothing in the contract upon which any such claim can be predicated. The promise to ship the stone as- fast as the defendants could procure vessels, and that they had chartered the “ Kedron,” and would.inform the plaintiff of her arrival, did not in fact or effect transfer the cargo of that vessel to the plaintiff, nor give him the right to demand its delivery under the contract. It did not impair or lessen the time of performance, and the refusal or neglect to deliver those cargoes did not operate as a rescission of the contract by the defendant. They had still the right to go on, and from time to time, by any vessels or other vessels, make delivery down to the close of the season. And a tender from any of such other vessels, if made within the time limited for the delivery, would have been a sufficient compliance with the contract on the defendants’ part; and a refusal to accept such tender would have put the plaintiff in default.

Besides, if the refusal to deliver such cargo could work a rescission by the defendants, it at most would have subjected the defendants to damages for injuriously delaying the delivery. But it did not lay the foundation for damages for a non-delivery of the remaining quantity. The right to deliver during the season continued, and the defendants could not be put in default until the end of it; and then, as a necessary preliminary to his action, the plaintiff should have made his demand, and shown the defendants’ refusal (Newton v. Wales, 3 Robt. 453).

Another ground for the nonsuit, was that the plaintiff had not shown that he was ready and willing to receive and pay on delivery.

Such a readiness to receive, and ability to pay, might, and under some contracts will remove the necessity for a demand. That is especially so when the time and place of delivery is fixed by the contract (Mount v. Lyon, 49 N. Y. 552). But the rule can not apply where the contract requires the delivery to be at a place to be designated by tlie vendee. Certainly not until the place has been designated.

In respect to the cargo by the “ Kedron,” the place for its delivery was designated, the plaintiff testifying that he would be at the place ready to discharge and pay for the cargo immediately on its being discharged. He did not, however, testify to any refusal, only to a neglect to deliver, and he did not say that he was afterwards at the place, ready and willing to receive and pay for the cargo.

But even if the plaintiff had brought himself within the rule, it would have applied only to the cargo of the “ Kedron,” and, if otherwise entitled to recover for the non-delivery of that cargo, it would still have left his cause of action incomplete for the remainder of the contract, and proof of readiness to receive and ability to pay as to such residue would have been essential.

It seems to be now well settled, that in an executory contract for the sale, and a future delivery of personal property, where the time and place of delivery are fixed, or are capable of being fixed, the vendee, to put the seller in default, must be ready and willing at the time and place, to receive and pay (Mount v. Lyon, supra, and cases there cited). As the court say in that case, it is not necessary that he should keep on hand during the whole time of the contract a sum of money sufficient to pay for the whole quantity. “It is sufficient that he had the means at his command which would have enabled him to pay.”

It is, therefore clear, even in respect to any right of action for the non-delivery of the “ Kedron’s” cargo, that the plaintiff failed to show the necessary facts to bring his case within the rule.

He did not show that he was at the designated place of delivery with the means to pay for the cargo.

Upon both grounds, therefore, the decision was correct.

The judgment should be affirmed.

Curtis, J., concurred.  