
    Gilbert v. Danforth.
    
      Contract for delivery of specific articles.
    
    Where a note is given, payable in specific articles, by a day named, to bo selected by the payee, his omission to select, within the time, does not discharge the maker from liability on the contract; the former may select and demand payment, according to the tenor of the note, at a future day.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment entered on a verdict in favor of the plaintiff, had been affirmed, and a motion for a new trial denied.
    This was an action of assumpsit, to recover a balance alleged to be due upon a contract in writing, in the words following
    “ For value received, I promise to pay Martin Gilbert, three hundred and sixty-two dollars and fifty cents, in castings, such as said Gilbert shall select and direct, such as are cast at the Middleburgh furnace, which I agree to deliver at Gilbert’s dwelling-house, at Ghent, in Columbia county, at 4| cents per pound, to be delivered within, or by the 1st day of March next, and agree to deliver some castings as it may be convenient for me to deliver soon; said Gilbert to give timely notice what castings he will select or want; and in default thereof, I agree to pay the money for such part as is not paid in castings.
    June 8th, 1843. Teros. P. Danforth.”
    In some of the counts of the declaration, it was averred, that the plaintiff gave notice to the defendant, what castings he would want, according to the tenor and effect of the contract and that the defendant did not, by the 1st March 1844, nor at any time afterwards, deliver the same, * kqc i or Pay the money; in others, it was *averred, -* that on the 5th March 1847, the plaintiff, gave notice to the defendant, what' castings he would want, according to the tenor and effect of the note, and requested him to deliver the same, or pay the money, and that although a reasonable time had elapsed, the defendant had not' done so; the declaration also contained the common counts. The defendant pleaded the general issue.
    On the trial, before Harris, J., the plaintiff showed that on the 5th March 1847, he had requested the defendant, in writing, to deliver certain described castings, to the amount of the balance due on the note, within a reasonable time; and he gave evidence tending to show that the castings so selected were such as were cast at the Middleburgh furnace. The plaintiff having here rested his case, the defendant’s counsel moved for a nonsuit, on the ground that the contract required the plaintiff to give notice of his selection of the articles, prior to the 1st March 1844, which had not been done, nor any excuse shown for the omission to do so. The motion for a nonsuit was, however, denied, and an exception taken.
    _|; *The defendant then showed ■ that in October ” ^ 1843, he had urged the plaintiff to let him know what castings he wanted, as they could not be made in a few weeks, and he wished to send them before the roads became bad, so as to avoid any default in the delivery. That some castings were, accordingly, selected and delivered — the last, on the 16th March 1844. No further demand was made until March 1847, when the defendant had ceased to have any interest in the Middleburgh *furnace.' The amount due on the note, with °°° -1 interest after three months from the last demand (which it was agreed was a reasonable time for delivering the castings selected) was $175.
    The learned judge charged the jury that the time specified in the note for the delivery of the castings, was for the benefit of the plaintiff; that if the plaintiff did not give notice before the 1st March 1844, what castings he would want, then, the defendant could have called upon the plaintiff to make a selection, and upon his neglecting to do so, the defendant would have had a right to select the articles himself, and to tender them in discharge of the note; that the plaintiff had a right to give notice, after the 1st March 1844, what castings he would want, and the defendant was bound to deliver them, in a reasonable time; that if the articles mentioned in the plaintiff’s notice were not such as were cast at the Middleburgh furnace, the defendant should have so informed the plaintiff. To which charge, the defendant’s counsel excepted.
    The jury, under the instruction of the court, having given a verdict for the plaintiff, for the balance due upon the note, and the judgment entered thereon having been affirmed at general term, and a motion for a new trial denied, the defendant took this appeal.
    
      Hill, for the appellant.
    
      Reynolds, for the respondent.
   *Welles, J.

— By the contract upon which the „ ^ action was brought, the defendant was bound to pay the plaintiff $362.50, by the first day of March succeeding its date (March 1844), in such castings as were made at the Middleburgh furnace, at 4J cents per pound; the plaintiff having the right to select the castings, which the defendant was bound to deliver at the dwelling-house of the latter. A portion of the castings were selected by the plaintiff and delivered to him by the defendant; the last payment was made on the 16th of March 1844. In March 1847, more than three years after the contract, by its terms, was to have been performed, the plaintiff demanded thy balance, specifying the particular kind and description of castings which he required, all being within the description provided for in the contract, which the defendant neglected to deliver.

It is claimed, that the contract imposed no duty upon the defendant to perform it, except within the time designated; and as the plaintiff had the right of selecting the particular kind of castings to be delivered, and # -i having, in reference to the balance *not delivered, -1 neglected to make such selection, by the time mentioned, the contract is at an end, and should be treated as if fully performed on the part of the defendant. This, however, cannot be so; the defendant was bound, by the agreement, to pay a certain amount, in a certain kind of property, which he has not done. The provision allowing the plaintiff the right to select and direct the particular description of castings to be delivered, was a privilege which it was competent for him to waive, without impairing the other provisions, or affecting the defendant’s obligation to pay the amount; and admitting that such privilege continued no longer than to a reasonable time before the expiration of the period allowed by the contract for payment by the defendant, to enable him to deliver such as the plaintiff might select, the most that can be claimed for the defendant, in case the plaintiff neglected to exercise the right of selection within that time, is, that he had waived it, and the privilege of making the selection was thereby transferred from the plaintiff to the defendant; but it by no means absolved the defendant from making payment at all. His duty to deliver the requisite amount of castmgs would remain, and would only be affected in regard to the particular kind to be delivered.

But it is not necessary, in this case, to decide how long the plaintiff’s right of selection continued, as the defendant is clearly in default, in respect to the amount not paid, in delivering castings selected by either himself or the plaintiff; although, I am of opinion, that if the plaintiff intended to avail himself of that right, he was bound to exercise it in time to afford the defendant an opportunity to comply, by the day mentioned in the agreement for that purpose, or the day to which the parties agreed to extend the time of performance. (8 Day 327.) If the plaintiff’s right of selection had terminated by lapse of time, or otherwise, the defendant should have paid the balance of the amount due, in castings of his own selection.

It is insisted, that the defendant was forbidden by the plaintiff to deliver any castings, except such as the plaintiff should select, and the selection not having been made within the time *provided by the .. ^ contract for their delivery, the defendant is ex- *- cused from further performance. Assuming, that the plaintiff’s right to select terminated with the time allowed the defendant for making payment, if the defendant wished to discharge himself from the obligation, he had it in his power to do so, by delivering the amount remaining due, in a reasonable time after the day fixed by the contract for payment, in any kind of castings therein described. If such right did not then terminate, but continued indefinitely, the defendant could have put an end to it, at any time afterwards, by requiring him to make the selection, and in his default, could have made the payment according to his own selection.

The directions of the plaintiff to the defendant, not to deliver any castings until he had notice from the plaintiff of the kind he wanted, were before the payment was due, and can be regarded in no other light than an admonition to the defendant to observe the provisions of the agreement, and not to disregard the plaintiff’s right of selecting for himself.- This view of the conduct and motives of the plaintiff, derives strength from the fact, that the defendant had been pressing him to select the castings, long before they were due, and had proposed to deliver certain kinds of castings, which the plaintiff had not called for. It would be torturing language, to construe these declarations of the plaintiff, under such circumstances, into.a rescission of the agreement; and it must amount to that, in order to excuse the defendant from his obligation to pay the balance. The 'judgment of the supreme court should be affirmed.

Ruggles, C. J.

{Dissenting) — It cannot be right, to say

that the time specified in the contract for the delivery of the castings, was for the benefit of the plaintiff alone; the defendant, undoubtedly, had an interest in it, as well as the plaintiff. The defendant was the owner of the furnace where it was expected the castings would be made; and it might be much more to his advantage, to manufacture the articles himself, than to purchase them ready made, or to employ others to make them. He , _ , _ retained *his interest in the furnace until the * 594 I J spring of 1845, and then parted with it. This was a year after the time fixed for the performance of the agreement, and two years before the plaintiff demanded the payment of the balance, in wagon-boxes and ploughshares. Besides, the price and value of the articles demanded may have been greater, at the time of the demand, than they were at the time fixed in the contract for the delivery of the castings. If the payee may postpone the performance of the agreement, by postponing the selection of the articles,, and make the selection, at an indefinite period afterwards, it gives him an advantage in speculating upon the fluctuation of prices, at the expense of the payer, which these parties, certainly, never contemplated. The time specified for the performance of the contract was, therefore, a material and essential part of it, and neither party could vary it without the consent of the other. It is to be inferred, however, that both parties did assent to the extension of the time, until the first of June 1844.

In October 1843, the defendant requested the plaintiff to make his selection of the castings under the contract, and complained of his delay in doing so. On the 30th January, the plaintiff selected a few articles, and requested the defendant, in writing, not bo deliver any other castings than such as the plaintiff should select and write for. On the 14th of February 1844, he selected, by letter, some other articles, and then said, “ In relation to the remainder of the castings that I am to receive on your note, except the load above referred to, I will extend the time of the delivery of the castings on the note, until the first day of June next, and you must not send or bring any, unless I give you notice first, what hind I want.” The castings selected by the plaintiff were delivered by the defendant, and the controversy is in relation to the balance undelivered, as to which no selection or demand was made by the plaintiff, until March 1847, when the plaintiff selected and specified the particular articles he desired to have, and demanded payment of the balance due in those articles.

Where a note is payable in goods, at a specified time, and the *goods are to be selected by the payee, he must make the selection, before the time *- fixed for payment, in order that the payer may perform the contract, according to its terms. But the payee does not lose the entire benefit of the contract, by omitting to make the selection ; the payer may, in that case, select the goods himself,' and a delivery of goods selected by the payer is, in such case, a sufficient performance of the contract on his part. Danforth the payer, in the present case, might, if he had not been forbidden by the plaintiff, Gilbert, have performed his contract, by delivering castings of his own selection; and perhaps, he might have performed it in that way, although he was forbidden to do so. But it is very clear, that the plaintiff, by forbidding the defendant’s^ delivery of the castings, until the plaintiff had made his selection, and by omitting to make his selection, until after the time when he ought to have done so had elapsed, lost his right of selection, at least, if he did not lose the benefit of the contract. And it is equally clear, that he ought not be permitted to maintain an action against the defendant for not doing that which he had forbidden him to do.

On the first of June 1844, when the extended time for performance expired, if the defendant had any duty to perform, under the contract, it was, to pay the balance due on the note, in castings of his own selection. 'This duty he was excused from performing, by the plaintiff’s own consent; and not consent merely, but prohibition; and the excuse remained good, at least, until the prohibition was revoked; this has not been done. In March 1847, more than three years after the time fixed for the performance of the contract, the plaintiff demanded payment, in castings of his own selection, and has brought his action for their non-delivery; this he had no right to do. If he had, at the time of that demand, any right remaining, under the contract, it was the right to demand of the defendant a performance, in the manner in which the defendant would have been bound to perform, if he had not been forbidden; that is to say, by delivering castings of the defendant’s selection. This the plaintiff did not demand, and his refusal to accept * Roe i suc-h performance ^remained, and still remains, -I unrevoked. Until that refusal shall have been withdrawn, by notice thereof to the defendant, the plaintiff ought not to recover. Whether, after a withdrawal of the prohibition, he can maintain an action, it is not necessary to decide.

If the plaintiff is allowed to recover, it must be on the ground, that the defendant was bound to deliver castings of his own selection, on the first of June 1844, notwithstanding he was expressly forbidden by the plaintiff to do so; to this I cannot assent. If the promissor be prevented from performing his contract by the act of the promissee, he will be discharged from liability for nonperformance. (Story on Cont. § 976.) Such an act was done by the promissee in this case. The prevention, it is true, was not by any act of forcible resistance, but that is not necessary, to excuse the defendant for not performing. If the condition be to build a house, and the obligee, or another, by his order, hinders the obligor from coming upon the land, or says that it shall not be built, the performance of the condition shall be excused. (Com. Dig. Condition, L. 6.) After having expressly directed the defendant not to deliver castings of his own selection, the plaintiff ought not to be permitted to say, that he did not prevent the delivery. This direction was equivalent to a refusal to receive castings of the defendant’s selection, and was a waiver of the tender and delivery of such castings; the tender would have been nugatory. (Bellinger v. Kitts, 6 Barb. 281; Franchot v. Leach, 5 Cowen 508.)

On the 30th of October 1843, when the defendant wrote to the plaintiff, requesting him to make his selections, so that he might be able to furnish the castings in season, he intimated his suspicion, that the plaintiff, by delaying to select, intended to “fix him to pay the money,” instead of the castings. The subsequent correspondence and conduct of the plaintiff, leaves a strong impression on my mind, that the suspicion was well founded; such a design deserves no encouragement. The defendant appears to have been ready and willing * KQ„ to perform his *contract faithfully; and it seems J to me, to have been the plaintiff’s fault, that it was not so performed.

The judge directed the jury to find a verdict for the plaintiff on the evidence given; that is the substance and effect of his charge. The defendant was not bound to specify his objections to the reasoning of the judge which led to that direction; the exception was, therefore, sufficient. I think, a new trial ought to be awarded.

Judgment affirmed.  