
    Hilton & Dodge Lumber Company, Respondent, v. Robert R. Sizer & Company, Appellant.
    First Department,
    April 8, 1910.
    Sale — partial delivery under entire contract — rights of buyer — when no waiver of complete performance—pleading—breach by buyer after time set for performance—allegation of performance under section 533 of the Code of Civil Procedure.
    Where a contract for the sale of a certain quantity of lumber to be delivered by a certain date is entire, the buyer is not bound to accept or pay for any quantity unless all of it has been delivered before the expiration of the time set.
    Payment for a portion of the lumber delivered before the time set for complete delivery is not a waiver of the complete performance of the contract.
    A seller who has not made complete delivery at the time set cannot excuse his failure to do so by alleging that the buyer refused to accept future deliveries if such refusal was not made until the time set for performance had expired. In order to excuse performance the seller must show affirmatively in his complaint that the repudiation of the contract by the buyer was before the time set for complete performance.
    A general allegation that the plaintiff has performed on its part all the terms of the agreement is insufficient under section 533 of the Code of Civil Procedure if the word “duly” be omitted.
    Appeal by the defendant, Robert R. Sizer & Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day'of January, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.
    
      Frank JD. Wynn, for the appellant.
    
      .Jamies A. G. Johnson, for the respondent.
   Dowling, J.:

The complaint in this action sets forth that the plaintiff, a foreign corporation duly authorized to do business in the State of Hew York, entered into an agreement with the defendant, a domestic corporation, for the sale of 425,000 feet of short leaf pine lumber, f. o. b. vessel St. Simons, basis of freight (that is the freight allowance to be made as- from port of St. Simons), at the price of $16.'50 per 1,000 feet, f. o. b. vessel St. Simons,, shipment to be made in February or March, 1906. Thereafter plaintiff is claimed to have delivered 41,000 feet thereof, which were delivered and paid for, and the defendant in writing duly extended the time of delivery for the remainder of said lumber.to and including the’ month of July, 1906 (the date 1905 in the complaint being concededly a clerical error). The complaint then proceeds as follows: '

“ Sixth. That within such time the plaintiff duly proceeded to manufacture the remainder of the short-leaf-pine lumber agreed to be manufactured and delivered by it in accordance with said agreement ; and of such remainder, and within such time, had manufactured 198,876 -feet thereof, and duly delivered same to defend.ant on dock at Belfast, in the State of Georgia, at which place, as provided in said agreement, said lumber was to be delivered.

Seventh. .That after plaintiff had so manufactured said 198,876 feet of sliort-leaf-pine lumber, and delivered the same as aforesaid, and was manufacturing the remainder thereof, the defendant notifiéd the plaintiff that it would not-receive the said lumber manufactured or any part thereof, or the whole or any part of the remainder of said short-leaf-pine lumber, and has refused, and still ■ refuses, to . receive said short-leaf-pine lumber as aforesaid or any part thereof, all without the consent of the plaintiff; that due and prompt notice of the delivery of said short-leaf-pine lumber, as aforesaid, was given the defendant.” . .

It is further alleged that the value of said 198,876 feet of lumber was $3,281.4.5, payment of which has been demanded and refused and no part of which has been paid. The complaint contains the following further allegation:

Ninth. That plaintiff has performed on its part' all the terms, covenants and conditions of said agreement on its part to be performed, and at all the times mentioned herein has been ready and willing, and now. is ready and willing to perform all the terms, covenants and conditions of said agreement on its part to be performed.”

Defendant demurred - to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

Concededly the contract in question was an entire one and called for the delivery of all the lumber specified before the end of July, 1906. The contract being entire, unless all the lumber had been manufactured and delivered at the place specified in the agreement before the expiration of the time fixed, the defendant was not bound to accept any of the lumber nor to pay for any quantity short of the entire amount contracted for. The complaint does not show when the 41,000 feet of lumber were delivered and paid for, save that it appears this was done at some time prior to the manufacture and delivery of the 198,876 feet. The payment for this portion delivered did not constitute a waiver of the complete performance of the contract, nor is any such claim made in the complaint, and the respondent’s brief expressly admits that it is not claimed that the defendant has waived or agreed to accept a partial delivery of the contract. It is, however, contended that the plaintiff was excused from performance by reason of the fact that while plaintiff was manufacturing its lumber and before the time to deliver the same had expired, the defendant by its own act prevented the plaintiff from car- • rying out and performing its agreement. If this had been properly alleged the pleading would have been good; but it is nowhere set forth in the complaint that the defendant’s notice that it would not receive the lumber manufactured was given prior to July 31, 1906, which was the latest day within which the contract could be performed. Nor can such an allegation be inferred from the pleading itself. The 6th paragraph can only be construed to mean that the plaintiff had manufactured and delivered 198,876 feet of the lumber by July 31, 1906. The words “within such time” mean that up to, and not beyond, Jnly thirty-first that amount of lumber had been delivered, and they fix and determine July thirty-first as the latest day up to which plaintiff claimed that performance had been made. It means more than simply saying “ before said time,” for it fixes a range of the time of delivery from the date of execution at the extension agreement to July thirty-first, and in effect avers that the delivery was made within that compass of time and was not after the latest date.

The complaint then sets forth that after plaintiff had so manufactured and delivered the 198,876 feet (that is, in effect, after the expiration of a period of time ending on July 31, 1906), and while it was manufacturing the balance thereof, the defendant gave the . notice that it would not accept a partial delivery nor the balance of the contracted amount. ,

By no reasonable construction of the language used can this be interpreted to mean more than an allegation that after July 31, 1906, the notice in- question was given by the defendant. This being so, notice given after the time fixed for performance cannot excuse the plaintiff’s failure to perform!

When a contract entire in its nature is pleaded and it affirmatively appears that plaintiff lias not performed and he" seeks to excuse his failure to perform by notice given by the other party that the latter will not accept the merchandise agreed to be bought or manufactured, it must'affirmatively appear by the complaint that such notice was given before the time when the contract by its terms was to be fully performed.

The 9th paragraph of the complaint does not assist ■ plaintiff, nor help to set forth a good cause of action, for the provisions of section 533 of the Code of Civil Procedure have not. been complied. with in that the word “duly ” has been omitted. Therefore, the inferences which might otherwise be drawn in favor of plaintiff cannot be supplied here. (Clemens v. American Fire Ins. Co. 70 App. Div. 435.)

The interlocutory judgment appealed from should, therefore, be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff' to serve an amended complaint within twenty days, on payment of such costs as taxed.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Judgment reversed, with costs, and démurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  