
    ROBINSON CLAY PRODUCTS CO. OF NEW YORK v. JOHN H. THATCHER & SONS.
    (Supreme Court, Appellate Term, First Department.
    December 24, 1914.)
    1. Sales (§ 127)—Contracts—Time as or the Essence.
    Where time for delivery was not specified in a contract of sale, the buyer could not make time of the essence, without giving the seller nptice of an intention to cancel unless delivery was made on or before a fixed time.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 318, 319, 321; Dec. Dig. § 127.*]
    2. Sales (§ 180*)—Contracts—Time as of the Essence—Waiver.
    A buyer, accepting a part of the goods after the time fixed for delivery ¿nd requesting the seller to thereafter deliver more goods, thereby waived time for performance, though originally of the essence, so that notice fixing a new time was necessary.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 469-472; Dec. Dig. § 180.*]
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by the Robinson Clay Products Company of New York against John H. Thatcher & Sons. From a judgment of dismissal, and for the counterclaim pleaded by defendant, plaintiff appeals. Reversed, and new trial granted.
    Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.
    Young & Hughes, of New York City (James A. Hughes, of New York City, of counsel), for appellant.
    Hirsh & Newman, of Brooklyn (Benjamin Reass, of Brooklyn, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec, & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PAGE, J.

This action was to recover the contract price of goods sold. On March 18, 1913, the defendant ordered certain fire brick and tiles from the plaintiff by a written order. The tiles were to be manufactured in Ohio, as the defendant knew. Prior to the giving of the order, one of defendant’s employés testified that he called up the plaintiff’s New York office, and was quoted prices, and asked when deliveries could be made, and was informed, “In four or five weeks.” The written order states these prices, but is silent as to time of delivery. The fire brick was delivered May 6th, and was accepted by "the defendant. Thereafter the defendant wrote and telephoned to plaintiff’s New York office several times, inquiring when the tiles would be shipped.' At no time, however, did they notify the plaintiff that, unless the goods were shipped at a time certain, they would cancel the order. The tiles were shipped on May 20th. On that date the defendant mailed a notice of cancellation of the order.

Judgment was given for the defendant, on the theory that time was of the essence of the contract. But neither was a time for delivery specified in the order, nor can the indefinite expression of the salesman’s expectation over the phone be construed as an agreement definitely fixing the time for delivery. The defendant could not make time of the essence, without thereafter giving plaintiff notice of its intention to cancel the order unless delivery was made on or before a fixed time.

Even if time had been of the essence of the contract, and fixed at five weeks from March 19th, the defendant waived it by an an acceptance of a portion of the order after that date and requesting the plaintiff to thereafter deliver the tile, and, once waived, notice fixing a new time was necessary.

The judgment should be reversed, and a new .trial granted, with costs to appellant to abide the event. All concur.  