
    PATRICK W. BRADLEY, Appellant, v. JAMES M. COLE and JOHN D. COLE, Respondents.
    Appeal from a judgment in favor of the defendant entered upon the report of a referee.
    In the latter part of 1813, the defendants, who were partners in the business of wagon making, at Phelps, in the county of Ontario, agreed with F. Baker & Co., who were at the same time engaged in the sale of groceries, at the same place, to make, from materials furnished by themselves, a democrat wagon, for the price of $125, to be paid for out of the store of Baker & Co.
    Before the wagon was finished, Baker & Co., being about to dissolve their partnership, requested defendants not to complete the wagon, and release them from the agreement to pay for it. The defendants declined to do so, as it would leave on their hands an 'unsalable article; and, after some negotiation, it was agreed that defendants should complete the wagon, and, when done, sell it, and if it brought less than the contract-price Baker & Co. would pay the deficiency. Baker & Co. paid defendants the price agreed upon for their wagon.
    Before it was completed, Baker & Co.' sold the wagon to the plaintiff, and took his note in payment therefor; and gave an order on defendants, directing them to deliver the wagon to the plaintiff.
    Plaintiff presented the order to defendants, and they refused to deliver it until a debt due from one of the firm of' Baker & Co. to one of the defendants was paid.
    When the order was presented, a small amount of work was required to be done, in order to complete the wagon. The shafts were made, but not affixed to the wagon ; and the wheels were not put upon the axles.
    Before these things were done, proceedings were taken to replevy the wagon, and the sheriff, by virtue thereof, seized said wagon, and delivered it to the plaintiff.
    When the action was commenced all the parts of the wagon were in defendant’s shop.
    
      The General Term held, that as the defendants did not pnt their refusal to deliver the wagon to the plaintiff on the ground that' they had not completed the wagon, and that the plaintiff was not entitled to possession until delivery, but on the specific ground that they would not deliver unitil a debt due by the firm of Baker- & Go. to one of the defendants was paid, they waived all other grounds, and could not be allowed to- abandon it and insist upon non-delivery as a defense.
    
      JE. W. Gardner, for appellant. D. Stephenson, for respondents.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed, and new trial granted before another referee, costs to abide the event.  