
    Nicholas v. Venable.
    (New York Common Pleas
    General Term,
    December, 1892.)
    In an action to recover the purchase price of goods sold and delivered, it appeared that after the date when, under the contract, the goods should have been delivered, they were shipped at defendants’ request, received, accepted and retained by them, without objection as to tardy arrival. Held, that defendants had waived the default in delivery, and were estopped from setting up the belated delivery as a defense.
    Appeal from judgment on a verdict directed by the court, and from an order denying a new trial.
    Action for goods sold and delivered. The opinion states the case.
    
      
      I Albert Englehamt, for defendants (appellants).
    
      J. Hampden Dougherty, for plaintiff (respondent).
   Pbyob, J.

The plaintiff sues, as assignee, to recover the ■purchase price of goods sold and delivered to the defendants. ‘The only answer to the action involved in the appeal is, that by the contract of sale the goods were to be shipped “ at the earliest possible time, so as to arrive before September 1, 1890; ” that they were not so shipped and did not so arrive, .and this breach of agreement the defendants allege both in ■defense of the action and as a counterclaim for damages.

But it appears, without contradiction, that on the 12tli and 27th of September, 1890 — after the date when, according to the answer, the goods should have been delivered—the defendants telegraphed the assignors to ship the goods; that after the delivery of the goods the defendants sent the assignors an acknowledgment of their receipt, expressed satisfaction with them, and retained them without hint of objection to their tardy arrival; that on December sixteenth the defendants apprised the assignors that, “ owing to the stringency of money and inability to place our commercial paper,” they had become insolvent, and suggested a settlement of the claim, but without question as to its validity or amount; that again, on January 9, 1891, they wrote the assignors, “we have scheduled your claim at $2,638.70 ” — covering' its entire .amount ■—and solicited the assignors to unite with other creditors in a composition at fifty cents on the dollar. These offers being rejected, and the assignors driven to an action to collect their debts, the defendants, for the first time, interpose the objection that the goods were not delivered within the stipulated period. The fact that after the alleged time of shipment and delivery had elapsed, the goods were sent at the special instance and request of the defendants, operated of iiself as an estoppel against the defense of a belated delivery. At all events, that fact, coupled with the acceptance, approval .and retention of the goods, without objection as to the time of ■delivery, and with the negotiation for a compromise of the claim proceeding on an express admission of its validity and amount, clearly and conclusively demonstrates a waiver of the right to defend the action on the ground that the goods were not delivered in conformity with the contract.

Appellants argue, however, that for anything apparent they might have shown that, by the contract they proposed but were not permitted to prove, an acceptance of the goods was not to operate as a waiver of default in delivery. But, the Waiver is founded not alone on the acceptance, but independently and conclusively on the other facts recited as precluding the defense of no due delivery. Again, the answer is not a mere denial of the contract alleged by the plaintiff, but affirmatively avers another agreement between the parties, and of the agreement so averred, it is not a term that acceptance shall not waive default in delivery.

It follows, therefore, that the learned trial judge rightly rejected evidence, if indeed it were tendered, of a condition in the contract that acceptance of the goods should not operate a waiver of undue delivery, and rightly directed a verdict for the plaintiff.

Further discussion of a case so plain both on the law and the facts, would be but a useless expenditure of time and labor.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoee, J., concur.

Judgment affirmed.  