
    Joseph E. Hinds et al., Resp’ts, v. James E. Kellogg, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    1. Appeal—Certificate that case contains all the evidence.
    Where a case on appeal has no certificate that it contains all the evidence the court is confined to determining whether the facts found support the judgment.
    3. Statute of frauds—Goods to be manufactured.
    PlaintiSs agreed by parol to manufacture for defendants certain circulars to be delivered as soon as possible. They were designed exclusively for use in defendants’ business. Held, that although their value exceeded fifty dollars, and no part of the price was paid, the contract was not within the statute of frauds.
    3. Contract—“As soon as possible.”
    A contract to deliver “ as soon as possible” requires delivery within a reasonable time, and this latter means so much time as is necessary, under the circumstances, to do conveniently what the contract requires shall be done.
    4. Pleading—Insufficiency of complaint.
    Where the defendant intends to claim that the allegations of the complaint do not make out a cause of action his remedy is by demurrer or by motion to dismiss on the trial. Failing this, he cannot raise the point on appeal.
    5. Judgment—Code Civ. Pro., § 1033.
    Section 1033, Code Civ. Pro., provides that a referee in his report “ must direct the judgment to be entered thereupon.” This requirement is satisfied if from the whole or a part of the report the particular form and the terms of the judgment to which the successful party is entitled can be ascertained.
    Action for work, labor and services, and materials furnished, which defendant refused to accept on the ground that the articles manufactured were not delivered within the time stipulated for delivery. Appeal from judgment of the general term of the city court affirming a judgment in favor of plaintiffs upon the report of a referee.
    
      J. E. Ludden, for resp’ts; Isaac N. Miller, for app’lt.
   Bischoff, J.

The case on appeal omits the requisite certificate that it contains all the evidence adduced upon the trial, and we are confined in our inquiry to ascertaining whether the facts found by the referee support the judgment appealed from. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479.

About' April 12, 1887, plaintiffs, at the request of the defendant, agreed to manufacture 100,000 circulars, to be delivered as soon as possible, and about July 7, 1887, at like request, further agreed to make 450,000 wraps, to be delivered during the following month of September. These circulars and wraps were designed exclusively for use in defendant’s business, and not adaptable to any other purpose, and neither contract was, therefore, within the Statute of Frauds, and required to be in writing. Passaic Mfg. Co. v. Hoffman, 3 Daly, 495; Deal v. Maxwell, 51 N. Y., 652; Parsons v. Loucks, 48 id., 17.

The design for the circulars was approved by the defendant on May 3, 1887, and on June 24th following part of the circulars were delivered to, paid for and accepted by the defendant; but when, on the next succeeding day, plaintiffs tendered the remainder, defendant refused to accept the same on the ground that the delivery thereof was not tendered in time.

A contract to deliver “ as soon as possible ” requires delivery “ within a reasonable time,” Hydraulic Eng’g Co. v. McHaffie, 29 English Rep., 102 (Moak’s Notes); Benjamin on Sales, Bennett’s Ed., par. 687; Arthur v. Wright, 32 N. Y. State Rep., 32. And “ reasonable time ” is defined to be “ so much time as is necessary under the circumstances to do conveniently what the contract required shall be done.” Wells on Questions of Law and Fact, p. 136, § 151, and cases cited; Bouvier’s Law Dictionary, vol. 2, “Reasonable Time.”

What is, or is not, a reasonable time for the performance of the act required is, therefore, a question dependent upon the intention of the parties, and the facts and circumstances of the particular case. Defendant urges, and the referee has so found, that it was possible for plaintiffs to deliver all the circulars within ten days after approval of the design. This may well be, but it does not follow that because it was possible to make delivery within less time, that the time within which plaintiffs tendered the remainder of the circulars was any the less reasonable under the definition of what «constitutes a “ reasonable time ” above referred to.

The unconditional acceptance and retention by the defendant of a portion of the circulars on June 24th and his payment therefor are conclusive upon him that the delivery thereof was reasonable, Read v. Randall, 29 N. Y., 358, and in the absence of all proof of any special circumstances it would be an unwarranted and arbitrary assumption to hold that the next succeeding day was beyond the boundary line of reasonable time. Thus it does not appear, when the defendant requested delay in the delivery of the circulare until May 10th, 1888, as found by the referee, that the plaintiffs were in default, and the request having been acted upon by the plaintiffs the defendant is estopped from claiming that an earlier delivery should have been made and that the omission to make the same excused defendant from acceptance on May 10th, 1888, on which day the remaining circulars appear to have been duly tendered. Friess v. Eider, 24 N. Y., 367.

So, too, the agreement by plaintiffs to deliver the wraps during the month of September, 1887, gave them the entire month within which to make such delivery, and the defendant’s request for delay until May following having been made and acquiesced in before the expiration of the month, and not appearing to have been withdrawn, the plaintiffs are not chargeable with default in delivery and no new consideration was required to support the defendant's promise to accept the wraps in May. Friess v. Rider, supra.

There is no force in appellant’s contention that the judgment appealed from should be reversed because the allegations of the complaint are insufficient to constitute a cause of action. If the complaint was not sufficient in this respect defendant’s remedy was by demurrer or motion for dismissal at the time of trial. Of neither did he avail himself, and evidence of all facts essential to plaintiffs’ recovery was received on the trial. In such a case the appellate court will disregard any insufficiency of the pleadings, Knapp v. Simon, 96 N. Y., 284, and if necessary in support of the judgment direct an amendment to conform to the proof. Reeder v. Sayre, 70 N. Y., 180: Harris v. Tumbridge, 83 N. Y., 92.

The case relied on by counsel for appellant, Pope v. Terre Haute Car Manf'g Co., 107 N. Y., 61; 11 N. Y. State Rep., 209, is not to the contrary, and a careful examination will be convincing that the court decided nothing more than that it was error for the trial court to deny the defendant’s motion for a dismissal of the complaint, the latter appearing to be defective, and the plaintiff failing to apply for leave to amend.

The objection as to the alleged omission to direct the judgment in the referee’s report is equally untenable. Section 1022 of the Code of Civil Procedure provides that the report “ must direct the judgment to be entered thereupon; ” but this does not comprehend an instruction or command to the person whose duty it is to enter judgment to perform that duty. The word “ direct ” as used in this connection is synonymous with the words “ to point out,” “to guide,” “to show,” “to regulate” (Webster’s International Dictionary), and as the Code fails to prescribe the particular manner in which the judgment shall be so directed, and the place in the report at which the direction shall appear, the judgment is sufficiently indicated to meet the requirements of the provision of the Code of Civil Procedure referred to, if from the whole or any part of the referee's report the particular form and the terms of the judgment to which the successful party is entitled can be ascertained. In the present case the referee’s conelusion of law in concise and unambiguous terms states the amount of recovery to which the plaintiff is held to be entitled, and judgment thereupon was properly entered.

The evident purpose of the requirement that in a reference to hear and determine all the issues the report should point out or indicate the judgment to be entered in the action was to enable the clerk to comply with § 1228. of the Code of Civil Procedure, which authorizes him to enter judgment upon the report. If the report does not sufficiently point out the judgment to which the successful party is entitled, or because of some obscurity or ambiguity in the report a question as to the form of the j udgment, or the terms thereof, arises, the defect is not fatal and its effect is not to render the report a nullity. In such a case the party éntitled thereto must apply to the court to frame or settle the judgment to be entered. Maicas v. Leony, 22 Abb. 1 N. C., 1; 19 N. Y. State Rep., 705.

In an elaborate note to the case last cited the learned author says: “ If the referee decides the whole issues, that is to say, makes complete findings adequate for final judgment and fails merely to direct the form of the judgment, the court has power to supply the deficiency, and if necessary, by reason of the absence or disqualification of the referee, or otherwise, will do so. It may do so either by itself framing the judgment or referring it to a referee to report a proper form of judgment. But, properly viewed, this is not an assertion of the power of the court to finish the trial of a cause which the referee has not completely tried, but only an exercise of the power of the court to instruct the clerk as to what judgment is in legal effect directed by the report when the referee has fully tried the cause and fully reported, but merely failed to prescribe the form in which the record shall show it. * * * The function of the court in putting an informal report into the form of a judgment is really in aid of the clerical functions of the clerk, and not in aid of judicial functions of the referee.” This appears to be a correct view, and we adopt it.

An omission to apply to the court for judgment where such application is necessary to the entry of judgment is an irregularity only and does not render the judgment void, Bissell v. N. Y. C. & H. R. R. R. Co., 67 Barb., 385; the remedy is by motion to set aside the judgment, not by appeal. Rumsey’s Practice, vol. 2, p. 565 ; People ex rel. Oswald et al. v. Goff, 52 N. Y., 434; Kenney v, Apgar, 93 id., 539, and so long as the judgment is permitted to stand its validity is in no wise affected or impaired because of any informality in the entry thereof. Code of Civil Procedure, § 721, subd. 11. Such informality may be waived also by express stipulation, or by conduct which precludes the party from taking advantage thereof. An adoption of the judgment for the purposes of an appeal upon the merits of the controversy thereby determined constitutes such a waiver, as the appellant cannot assert the validity of the judgment on such appeal, and at the same time assert its invalidity because of a mere informality in its entry. Valentine v. Heydecker, 8 N. Y. W. Dig., 478.

The judgment appealed from should be affirmed, with costs.

Daly, Gh. J., concurs.  