
    Francis Gordan Brown, Resp’t. v. F. O. Norton, App’lt.
    
      Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    1. CONTRACT MADE BY COBBESPONDENCE—ANSWER MUST BE SPECIFIC.
    To create a contract, where it is sought to make it by correspondence, it is necessary that the answer be as specific as the proposition.
    2. Same—What necessaby to satisfy Statute of Frauds.
    The correspondence, to satisfy the Statute of Frauds, where the contract is within its provisions, must include and embody all the substantial attributes of the agreement.
    3. Same—When correspondence created contract.
    The defendant wrote to plaintiff’s assignor: “I will take ten M. Blue Welch fire-bricks at twenty-four dollars per thousand upon the opening of navigation upon the Hudson. Let me know if my order is accepted and oblige.” He received in reply: “We are much obliged for your order of February twentieth, for 10,000 Blue Welch fire-bricks at twenty-four dollars pqr thousand on dock at New York city; upon opening of navigation _we will execute order.” In a°postscript enquiry was made when navigation opened on the Rondout canal, to which defendant replied; “About the first of April.” Held, that the correspondence created a binding contract, on the part of the defendant, to receive and pay for the bricks on their arrival at the port of New York, and their delivery upon the wharf upon the opening of navigation upon the Hudson.
    4. Same—When contract executory.
    The plaintiff’s assignor imported 9,986 bricks, which arrived about the ■time mentioned, and were unladen from the steamer upon the wharf, when it was found that over 100 of them had been broken. Thereafter notice was given of their arrival to the defendant. The defendant refused to receive the bricks. He d, that plaintifE’s assignors had not performed their part of the agreement, and that defendant .never became liable for the purchase price of the bricks; that the contract was wholly executory, and that it was for said assignor to perform, according to its terms, before the defendant could be made hable for the purchase price of the-bricks.
    5. Same — When purchaser, under executory contract, becomesRIABIiE.
    What the law requires, to render it obligatory upon a purchaser to receive property under a contract of sale, is that the property itself, both in quantity and quality, shall conform to the agreement for its purchase. If it is deficient in either respect the purchaser may refuse to receive or accept it and in that manner avoid liability for the payment of the purchase price. This principle applies especially to executory contracts, which party may refuse to perform because of the property being deficient in quantity and quality.
    6. Same—Condition precedent.
    Where parties have agreed on one side to deliver a specific quantity and' description, or quality, and to accept it on the other, and then only to pay the purchase price, the offer or tender of the property in the condition required by the agreement, is the condition precedent to the creation of the liability. This rule is strictly enforced and only dispensed with where a defective performance (defective in an essential particular) has been accepted or received by the party proceeded against.
    Appeal from a judgment recovered on a verdict directed, by the court at the circuit.
    
      W. B. Winterton, for app’lt; F. S. Bangs, for resp’t
   Daniels, J.

The verdict was recovered for the price of 10,000 blue Welch fire brick, with interest thereon. The brick were imported from Liverpool by S. L. Merchant & Co., under an order given to them for that purpose by the defendant in February, 1886. There was but 9,986 of the-brick laden upon the steamer, and after her arrival and the unlading of the brick upon the wharf, notice was given by Merchant to the defendant of their arrival as being 10,000 brick, and he was requested to look after them. He failed to do so at that time on account of his boat not being in a condition to receive them, and after they remained upon the wharf for five or six days they were placed in a warehouse subject to the storage of forty cents a hundred per month. After that the defendant proposed to receive the brick, but finding them stored in this manner he refused to do so. Merchant & Co. afterwards assigned and transferred their claim for the price of the brick to the plaintiff in this action.

The defendant resisted the right of the plaintiff to maintain the action upon the ground that no binding contract for the purchase of the brick had been entered into between himself and Merchant & Co. The contract, so far as it was entered into, was made by correspondence.

The proposal to purchase the brick originated with the defendant, and it was in these words:

New Yore, February 20, 1886.
Messrs. S. L. Merchant & Co., 25 State St. :
Gentlemen—I will take 10 M. blue Welsh fire brick at $21 per thousand upon the opening of navigation on the Hudson. . .
Let me know if my order is accepted, and oblige,
Yours, etc.,
F. O. NORTON.

To that Merchant & Co. replied in the following manner:

New York, 2, 23d, 1886.
F. O. Norton, 92 Broadway, City:
Dear Sir—We are much obliged for your order of Feb. 20th for 10,000 blue Welsh fire brick at $21 per thousand on dock at New York city upon opening of navigation. We will execute the order.
Yours, truly,
S. L. MERCHANT & CO.
Per K.

And added to this reply in the form of a postscript, the inquiry when navigation opened on the Rondout canal. And to that Morton sent this reply:

New York, February 21, 1886.'
S. L. Merchant <6 Co., 25 State Street, City:
G-entlemen.—In reply to your letter of the twenty-third inst., would say that the Rondout canal will be open on or about the first of April.
Yours, truly,
F. O. NORTON.

The objection to this correspondence as a contract is placed upon the statement in the reply of Merchant & Co. to the defendant’s proposal, that the brick should be delivered on the dock in New York city. That delivery was •not in words made a part of the defendant’s offer. And Tor that reason it has been'urged that their addition created a different proposal instead of an unqualified acceptance of that made by the defendant, and, therefore, required acceptance by him to make it a binding contract.

But it is to be inferred, as these parties were engaged in the business, and understood the source from which the brick would be obtained, that they would be unladen upon a dock in the city of New York, in performance of the proposal made by the defendant, even if no reference had been made to that fact by the answer of Merchant & Co. The brick, under the proposal, were to be delivered upon the-opening of navigation on the Hudson. And that delivery, without anything more being said upon the fact, would be made in the natural and ordinary course of business upon a dock on the Hudson river. And such is the rule which has been followed by the courts concerning the delivery of goods to arrive from abroad. Angell on Carriers (5th ed.), §§ 309-312.

The reply of the defendant to the answer of Merchant & Co. also inferentially discloses that to have been his understanding of the proposal which was made, for that reply was written and sent upon the evident conclusion that the brick, under the agreement as it was proposed by him, were to be delivered on a dock at New York city. For if that had not been his understanding of his own proposal something more would have been added to his reply on this subject expressive of his dissent from this landing. But so far from doing that, his final reply simply answered the question concerning the opening of navigation, in language appearing to assume that he was to receive the brick under his proposal, in the manner mentioned in the answer of Merchant & Co.

There is no doubt as to the rule requiring the answer to be as specific as the proposal to create a contract where it is proposed to make it by correspondence.

This rule is fully and clearly maintained by the authorities. Myers v. Smith, 48 Barb., 614; 1 Parsons on Contracts (6th ed.), 475-6; Uhlman v: Day, 38 Hun, 298; Ashcroft v. Butterworth, 136 Mass., 511; Stagg v. Compton, 81 Ind., 171; Baker v. Holt, 56 Wis., 100; Derrick v. Monette, 73 Ala., 75.

And the correspondence to satisfy the statute of frauds where the case is within it as this case surely was, must include and embody all the substantial attributes of the agreement. Dickinson v. Rawson, 12 Week. Dig., 563.

This correspondence was such as to comply with these rules, and therefore to create a binding contract on the part of the defendant to receive and pay for the brick on their arrival at the port of New York, and their delivery upon the wharf, on the opening of navigation on the Hudson. And it appeared as a fact that this navigation was open on the 31st of March when the hrick arrived, and that the time had also arrived when the defendant himself declared that navigation would be open on the Rondout canal, through which it was probably designed by him to take these brick.

But as the defendant refused to accept, or receive the brick, the point is presented whether they were in the condition which the contract required them to be in, to subject him to the obligation of receiving and taking the brick and paying the price for them. At the time when the brick were unladen upon the wharf they were fourteen in number short of the contract quantity. And in the warehouse receipt which was given on the 6th of April, when they were taken in store, it is stated that about one hundred of the brick were broken. When these brick were broken in this manner, does not appear otherwise than by inference from the evidence. They do not seem to have been handled, or moved in any manner, after they were unladen from the steamer on the wharf until they were taken into the warehouse. And there is ground therefore for inferring, either that the brick were broken when they were laden on the steamer, or in her transit across the ocean, or in their delivery from the steamer on the wharf. N o intervening circumstance appears to have arisen which would account for the breaking of the brick in any other way. And they are stated to have been in this condition at the time when they were received in store.

Under the contract, as the brick were to be imported by Merchant & Co., they were at their risk until their delivery to the defendant upon the wharf. And as these brick were broken, either when they were laden upon the steamer or during their carriage, or in the process of unlading them, that risk and loss was upon Merchant & Oo., and not upon the defendant. That they were short in number and broken in this manner appeared by the plaintiff’s evidence upon the trial. And this fact was made á ground for the support of a motion to dismiss the complaint at the close of the plaintiff’s evidence. If the brick in this condition had been accepted and received by the defendant, the contract might be held to be so far performed as to subject him to liability for' the price, less the reduced value of the broken brick and the value of those not delivered at all. Bor the case then would present the fact of a substantial performance of the agreement, which would render the defendant liable to this extent. Clapp v. Thayer, 112 Mass., 296; Dauchey v. Drake, So N. Y., 407, 411. But the fact which was essential to bring this case within that rule did not exist, for the defendant at no time accepted or received the brick, or any portion of them.

A delivery order was obtained for the brick which is stated to have been indorsed and sent to the defendant when the goods were entered at the custom house. But this delivery order was not retained by the defendant, but it was returned to the witness Merchant, without any explanation or statement whatever, with the bill which had been rendered for the brick. This bill is dated on the 1st of April, 1886, and the import of the evidence is that with the order it was returned soon after that date to Merchant. There was, therefore no acceptance of the brick through the medium of this transaction, as there might have been if the order had been retained by the defendant. Hayden v. Demets, 58 N. Y., 426.

As the case stood upon the proof therefore, the question arises whether the defendant was so placed in default for his refusal to receive and accept the brick as to render him liable for the purchase price. The contract, it is to be remembered, was wholly executory between himself and Merchant & Co. And it was for them under the law to perform it according to its terms before the defendant could be made liable to pay the purchase price of the brick. 2 Parsons on contracts (6th ed.), 656.

They did not so perform it, for the brick were not only different in quantity, but about one hundred of them appear to have been broken. And it was in this condition that they were tendered and offered to the defendant. And they continued to be in the same condition when he returned the delivery order, thereby refusing to receive the brick. What the law requires to render it obligatory upon a purchaser to receive property under a contract of sale, is, that the property itself, both in quantity and quality shall conform to the agreement for its purchase. If it is deficient in either respect, the purchaser may refuse to receive, or accept it, and in that manner avoid liability for the payment of the purchase price. This principle applies especially to executory contracts which the party may refuse to perform because of the property being deficient in quantity or quality. And in this class of cases the rule has been stated to be that, “if the contract was entire, the plaintiffs were not entitled to recover, no part having been accepted, without a delivery, or an offer to deliver all the articles contracted for in the condition required by the contract.” Husted v. Craig, 36 N. Y., 221, 223.

The rule was also stated in nearly the same words by Church, Chief Judge, in Kein v. Tupper, 52 N. Y., 550, where it was stated to be, “ well settled in this state that upon a contract for the delivery of a specific quantity of property, payment to be made on "delivery, no action will lie until the whole is delivered.” Id. 555. This results from the construction and effect of the language employed by the parties in making and entering into their agreement. And where they have agreed on the one side to deliver a specific quantity and description, or quality and to accept it on the other, and then only to pay the purchase price, the offer or tender of the property in the condition required by the agreement is a condition precedent to the creation of the liability.

And the rule upon that subject is that “Whenever a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Oakley v. Morton, 1 Kernan, 30, 31; Baker v. Higgins, 21 N. Y., 397 ; Hill v. Heller, 27 Hun, 416.

Upon this subject it has been correctly said that “ courts have no dispensing power to absolve men from their legal engagements, nor can they make contracts for them. The delivery was a condition precedent to the payment of the price, and the plaintiff must first perform on his part before he has any ground of complaint against the defendant.” Mead v. Degolyer, 16 Wend., 632.

A strict compliance with this rule has only been dispensed with in cases where a defective performance, not in an essential particular, has been accepted or received by the party proceeded against. Brown v. Weber, 38 N. Y., 187.

And as no such performance took place in this instance, the principle, in its full and unqualified force, is applicable’ to the disposition of this controversy.

The defendant contended at the trial, and his own evidence had a tendency to prove the correctness of his position, that further time had been given to him in which he-could accept and receive the brick. But this was contradicted by Mr. Merchant, and the jury found the fact not to have been as the defendant stated it. There was accordingly no waiver whatever of his right to insist upon a complete performance of the agreement both as to quantity and quality of the brick. And when it appeared, as it did by the plaintiff’s evidence, that Merchant & Co. had not been in a condition to perform the agreement upon their part, the conclusion legally followed that the defendant never became liable for the payment of the- purchase-price of the brick. There had been no waiver whatever of his right to insist upon a complete performance of the agreement, and when it appeared that Merchant & Co. could not perform it, and did not purpose to perform it as it had been made, they failed to maintain their action for the recovery of the purchase-price.

For at least a tender of the property as it was described in the contract, or an offer to deliver it to the defendant. was a necessary fact to entitle them to the payment of the purchase-price. No such tender was or could be made of the brick, and the defendant consequently was entitled upon his motion to a dismissal of the complaint. The judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J., and Bartlett, J., concur.  