
    Thomas J. Gleason, Respondent, v. Charles W. Thom et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Sale — Goods to be manufactured —1 Performance.
    In an action for the agreed price of goods manufactured to-order after a refusal of acceptance, a defense on- the ground that they were not delivered in time is not available, where the refusal to accept was based on a different ground, and no claim made that the time for performance had expired.
    2. Same.
    A contract for making hlank-books required them to be bound in a certain quality of leather, and to look ag good ás a sample book, which was bound in a different leather. The proof showed that -they were bound in the leather specified. Several witnesses testified that the books furnished were greatly inferior to the sample in appearance, but plaintiff denied that he would call the sample better than his books. Held, that the evidence was sufficient to require a submission of the question to the jury.
    Gleason v. Thom, 14 Mise. 234, affirmed.
    Appeal from a judgment of the General. Term of the City Court of New York, affirming judgment on verdict.
    L. J. Morrison, for respondent.
    Julien T. Davies and Brainard Tolies, -for' appellant.
   Bischoff, J.

This, action was brought to recover the agreed price of goods manufactured under a contract between the parties, the defendants having refused acceptance, claiming nonperformance upon the plaintiff’s part.

The contract was entered into in June, 1893, and called for the furnishing of 1,000 blank-hooks, to he made according to sample,' and delivered “ as soon as possible, which will be about August 1st.” These hooks were to he covered with' leather of a kind according to a sample which defendants had marked “ approved,” and were to “ look as good ” in this regard as the sample hook, which was covered with a different quality of leather. •

About the 10th of August, delivery was made of 2Ó0 hooks, which were rejected by the defendants, principally, it appears, because the covers were not satisfactory, and also because the pages were not. numbered.

This last defect the plaintiff offered to remedy at once, but the defendants still refused to accept the delivery. Up to this . date no question as to the time of performance had been raised and the plaintiff’s readiness to correct the defect of paging before the time for performance had expired, according to the parties’ understanding of what that period was, could be taken as a substantial performance so far. Miller v. Benjamin, 51 N. Y. St. Repr. 750.

What attitude was-taken as to the time of delivery could have been inferred , from the defendants’ letter of. August 22d, in which they said, ■“ We want you to send for the books, as .we told you and Mr. Wakeman both, as we will not take the books unless as agreed and up to sample.”

It • was thus inferable that the defendants "had looked upon the time of performance, at that date, as unexpired, and, since they then would not accept the books as tendered, the plaintiff could consider the contract broken, cease further delivery and recover damages, if he could' maintain "his position that the books were according to sample, and “ looked as good ” as the model in the way of binding. Soltau v. Goodyear Vulcanite Co. 12 Misc. Rep. 131.

There was evidence that the covers of these books were actually of the same leather as the sample which had been marked approved ” by the defendants, and whether or not :the appearance of the goods was as pleasing as that of the sample book the court and jury below had an opportunity to discover, since there was an ocular comparison at the trial.

The evidence contained in the record tends -very strongly to show that the books furnished were quite inferior to the sample in. appearance, this being caused by the effect of the binding process upon the cheaper leather, but there is some contradiction as to this in the plaintiff’s denial that he Would call the sample book better than his own production. .

Our conclusion must he that there was some evidence in support of the plaintiff’s cause of action, and that the court did not - err in refusing a nonsuit at the trial. This-is as far as we may look into the facts of the case (Claflin v. Watch Co., 1 Misc. Rep. 669), whatever may be our view of the justice of the verdict as based upon the preponderance of proof.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  