
    Nightengale et al. v. Eiseman et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    Sale—Action fob Pbice—Pabtial Delivbby.
    When goods are ordered in a certain quantity to be delivered at definite times,- and the seller agrees to furnish them as near as possible at such times, the quantity is material, and the seller cannot sue for the price of any part of the goods until he has delivered all of them; the order being indivisible, though the deliveries-be several.
    Appeal from circuit court, New York county.
    Action by John Nightengale and another against Moses L. Eiseman and' another for the sum of $663, the price of 17 pieces of goods. The order for the-purchase of the merchandise from plaintiffs was in writing, signed by the-agent of defendants, and, so far as material to this appeal, was as follows:
    “January 4, 1886. '
    
      “Eiseman & Co., Grand St., City,
    
    “Order No. 11.
    Ship by Ex.
    Bill Mach. Delivery.
    Duplicate No. ■
    Term, 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, 60c.”
    Then follows a statement of the colors of the different pieces to be furnished. In acknowledging the receipt of the order, 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,- and the complaint was dismissed. Plaintiffs appeal.
    Argued before Van Brunt, P. J:, and Bartlett and Macomber, JJ.
    
      Smith & White, for appellants. Theodore Connolly, for respondents.
   Macomber, J.,

(after stating the facts.) 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 in the time mention'ed 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 times of delivery, but promised to deliver the same “as near as possible” to the time stated in the order. Ho objection was made to this modification of the proposed contract, and the parties seemed 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 17 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. U. S., 96 U. S. 168. Says the court in Norrington v. Wright, 115 U. S. 204, 6 Sup. Ct. Rep. 12: “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 plaintiffs’ evidence itself establishes 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. Jjkir these reasons the trial judge was justified in nonsuiting the plaintiffs’ complaint. The judgment should be affirmed, with costs.

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