
    Eben Sutton et al. plaintiffs and respondents, vs. John B. Cronin et al. defendants and appellants.
    1. A complaint was held, on demurrer, to be defective in substance, which alleged merely the following facts: That the plaintiffs sold to the defendants by samples, a certain quantity (3000 pairs) of merchandize, (blankets,) to be paid for within a certain time (30 days) after delivery. That the plaintiffs delivered about one half of such merchandize. That some of it did not correspond with the samples, and that the plaintiffs, in consideration thereof, guarantied it to be of a quality to pass inspection by the government, on purchase. That the defendants then agreed to receive such merchandize, and pay for it, and, after a portion had been delivered, promised to pay the price, but afterwards announced their intention to return that part delivered. That the plaintifls notified them that if they did so, the plaintiffs would sell such merchandize to the government, and hold them responsible for any loss. That the defendants sent the merchandize to the plaintiffs, who sold the samé to the government for the best price they could get, and rendered an account of the sales, showing the sum due and owing from the defendants, which still remained unpaid, and which the plaintiffs claimed to recover.
    2. Such a return of the goods, by the defendants, could not constitute an assent by the plaintiffs, to the terms of the notification, so as to form a contract binding on them. The latter could not, by such notice, compel the former to keep the goods or assent to its terms.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 12, 1865;
    decided December 30, 1865.
    This was an appeal from an order made at special teYm, overruling a demurrer to the complaint; which lattér is as follows:
    [Title of action.] “ The above nameá plaintiffs complain against the above named defendants as follows : "
    
      First. That at the several times hereinafter mentioned or referred to, the said plaintiffs were co-partners in business in the city of New York, under the firm name of Sutton, Smith & Co., and the defendants were co-partners in business in said city under the firm name of Cronin, Hurxthal & Sears.
    • Second. That on or about the 7th day of March, 1863, at the city of New York, the said plaintiffs’ firm sold to said defendants’ firm, three thousand pair of blankets, some at seven dollars and fifty cents per pair of ten pounds weight, and some at seven dollars and seventy-five cents per pair of ten pounds weight. The sale was according to samples.
    That the said blankets were to be paid for as follows : in securities of the government of the United States, issued in the month of January, 1863, at par, to the amount of the entire purchase, at the prices aforesaid, such securities to be furnished within thirty days after delivery.
    
      Third. That after such sale the said plaintiffs delivered to said defendants about one half of the blankets. That on comparing some of the blankets with the samples, it was found that they did not precisely correspond, and in consideration ■thereof, and as a substitute for conformity between the blankets and samples, the said plaintiffs guaranteed to the defendants that the said blankets (which the defendants alleged they purchased to sell to the government of the United States) were of the quality which would pass inspection by said government on purchase. In consideration whereof, the said defendants agreed to receive the blankets aforesaid, at the price aforesaid, and to pay for them as aforesaid. And the said plaintiffs say that said blankets were of the quality which would pass inspection as aforesaid.
    
      Fourth. That after a portion of said blankets had been delivered to the defendants, although the said defendants promised to pay the amount aforesaid, yet in the month of April, A. d. 1863, after such sale, under certain pretexts by them assigned, and which were wholly unfounded, they announced their intention to return such óf the blankets as had been delivered to them. Whereupon the said plaintiffs duly notified the defendants that if the said defendants returned said blankets, or any of them, it would be upon the express condition that by reason of such act, and the refusal to pay for the blankets delivered, the said plaintiffs would be authorized to, and would sell all the blankets at market prices, to the government of the United States, on the account of said defendants, and hold the defendants responsible for any loss or expense said plaintiffs might sustain by reason of so doing.
    
      Fifth. That having been so informed, as aforesaid, of the condition on which alone the said blankets which had been delivered to the defendants, could be delivered back to the plaintiffs, the said defendants sent the same, with written certain invoices to the plaintiffs, who thereupon advised the' defendants that they would effect sales, and send an account with the usual charges. And thereafter the said plaintiffs, having first informed the said defendants of the terms on which they proposed to sell said blankets, did sell and dispose of the same to the government of the United States for the best terms they could procure therefor, and rendered an account of the sales, with charges and expenses, showing that on or about the twenty-third day of September, a. d. 1863, there was due and owing from the defendants to the plaintiffs the sum of eight thousand six hundred and fifty-nine -Afo dollars.
    
      Sixth. That the said account rendered was in all respects true and just, and that at the date thereof the amount last mentioned was due and owing to said plaintiffs, as above stated, and the same has ever since remained and now is wholly due and unpaid.
    Wherefore the said plaintiffs pray judgment for the said amount of eight thousand six hundred and fifty-nine dollars, with interest thereon from the 22d day of September, A. d. 1863, besides the costs of this action.”
    The defendants demurred to the complaint, on the ground that it appeared from the face thereof that it did not state sufficient to constitute a cause'of action.
    
      J. N. Balastier, for the defendants, (appellants.)
    I. The complaint is so vaguely drawn, as, even with the aid of conjecture, to be scarcely intelligible. In any aspect, the facts stated are insufficient to constitute a cause of action.
    1. The' contract alleged was void for uncertainty. It is too indefinite to be enforced.
    (a.) Some of the blankets were at $7.50 per pair of ten pounds weight, some at $7.75 per pair of ten pounds weight. 
      Non constat the price of the residue, or the price of any of a different weight, or that all were to be of that weight.
    (&.) The blankets were to be paid for “ in securities of the government of the United States, issued in the month of Janury, 1863.” What securities ? Bonds, certificates of indebtedness, treasury notes, or what other of the securities of the various grades and values ? Is the signification of the term “ securities ” so definite that in an action on contract for the recovery of money only, like this, (see summons,) the law can take cognizance of it and enforce a contract for the delivery of such .securities, or even their value in money ?
    
    2. If such a contract be valid, it must be as a contract for an exchange of commodities, and’ not for a sale of goods: But in either aspect it is an entire contract. No right of action can accrue for its breach, until after full performance by the plaintiff. (McMillan v. Vanderlip, 12 John. 165, and cases cited. Jennings v. Camp, 13 John. 94. Lantry v. Parks, 8 Cowen, 63.)
    
      (a.) There is no averment either of full performance or of an offer to perform. The allegation is that only “ about half the blankets ” were delivered.
    (5.) The return of such as were delivered under the circum- . stances stated in the complaint, did not exonerate the plaintiffs from their obligation to deliver or tender the residue.
    
    (c.) Nor did such return authorize or warrant the subsequent notice- alleged to have been given by the plaintiffs, nor the subsequent action of the plaintiffs thereupon. The plaintiffs should have refused to receive the goods, and should have tendered the residue, if they designed to enforce the contract. • Their acceptance of the goods, (notwithstanding their notice,) operated to rescind the contract. (Coon v. Reed, 1 Hilton, 511.)
    ' (d.) The plaintiffs’ notice could not operate as a modification of the contract between the parties. Gontracts are mutual. Ex parte notices cannot avoid or alter them. There can be no modification, except by the consent of both. The plaintiffs gave an unauthorized notice. The defendants were under no obligation to express their assent or dissent. They stood on their rights. If the plaintiffs saw fit to rely on that unauthorized notice, they did so in their own wrong.
    (e.) But if the assent of the defendants to the terms of the plaintiffs’ notice were inferrable from their silence, (which we deny,) such inference would only be warrantable in aid of proper averments of assent. The complaint contains no such averment. It neither alleges that the defendants assented to the terms of the notice, nor even that they remained silent. We insist that express assent is requisite to bind them. Non con-stat that they did1 not object. But the complaint avers, that the blankets were returned “ upon certain unfounded pretexts.” It thus discloses a disagreement between the parties wholly inconsitent with acquiescence in the notice.
    3. The plaintiffs having no valid claim against the defendants for the price of the blankets, for the reasons above stated, of course could not charge the defendants with any deficiency in such price resulting from a resale.
    4. If they had a valid claim for the price, and were authorized to sell for the defendants’ account, they could only do so on giving reasonable and proper notice. The notice alleged was insufficient and improper. A mere notice that the plaintiffs would sell to the United States at market prices, without specifying time or place or manner of sale, nor whether the sale would be public or private, is not a notice that they would deal with the goods in the manner authorized and required by law. The sale should have been made, (if it could be made at all, which we deny,) at public auction, upon due notice of the time and place. If not, it should certainly have been made, under the widest latitude allowed to the vendor by the decision of the court in Crooks v. Moore, (1 Sandf. 297,) “in the usual and customary manner,” whatever that may have been, and for the best price that could have been obtained therefor. There is no averment of a notice that they would be, nor is there any averment that they were so sold. Moreover, the plaintiffs had no right to sell “ all the blankets,” if any; their right, if it existed, as to the blankets returned, was confined exclusively to them, and assuming to deal with the residue, without tendering or offering to deliver them, was a rescisión of the contract, “ The best terms the plaintiffs could procure,” especially from a solitary designated purchaser, able to dictate terms, is by no means synonymous with “ the best price that could be obtaiúed ” from the trade as well, as the government.
    5. If does not appear what price was obtained on the resale; nor what charges or expenses were incurred; nor whether the proceeds were applied to the plaintiffs’ credit; nor whether any deficiency remained after such application. Non constat but that the proceeds of the resale greatly exceeded the contract price. What was the contract price ? The government securities, whatever they were, were to be taken in payment at par; but the plaintiffs’ damages, in the event of a breach on the part of the defendants, would be measured by the actual market value. There is no averment as to such value, nor of any damage, nor, in fact, of any refusal on the part of the defendants to deliver them ; in short, no averment of breach of the contract on the part of the defendants at all. Now does it appear that any thing is due to the plaintiffs on such a statement of facts ?
    6. The only allegation tending, however remotely, to sustain the idea of such indebtedness, is that the plaintiffs rendered an account of sales, showing that there was due a certain specified sum, and that such account was true and correct. The mere rendition of an account, whatever it showed, or however true its contents, establishes no cause of action. The averment that it showed that there was a sum due is a mere legal assumption—an inference deduced from facts which are not stated. This is an action for a money demand on contract. The complaint must be governed by the same rules that would apply to an action for goods sold. A complaint averring that A. bought (payable in certain securities) a quantity of blankets, (not specified,) some of five pounds weight and some of ten pounds weight, and that it appeared by an account rendered (not set forth) that there was due to the plaintiff a certain sum, would certainly be bad pleading. Our demurrer is not to be taken as an admission to the plaintiffs’ legal conclusions. ' It may be possible that the facts stated in the account (if any were stated) would, when properly averred in the complaint, constitute a cause of action against these defendants ; but the court is not informed what they were, and if it had been, the mere averment. that they were stated in an account would not have dispensed with the necessity of stating them in an issuable form as an essential part of the complaint. An issue upon the rendition of the account would be immaterial, and we cannot take issue upon the averment that it showed an indebtedness, since that averment is but a mere legal conclusion.
    7. The notion that when a complaint refers to an account the defendant is bound to call for particulars, and help make out a case against himself, is unfounded. The substance of the account must appear in the complaint. Its details are all the defendant is under any obligation to call for. When the substance of the account is not stated, there is nothing upon which to base a call for particulars. If a complaint aver that „ A. owes B. $100, as per account rendered, shall B. be held to call for particulars, or is the complaint bad ?
    8. So as to the idea of the defendants’ obligation to move to make a complaint more definite and certain. The motion supposes and is based upon an indefinite and uncertain averment, and not a total omission to aver material facts. To seek to make an averment that does not appear at all “ more definite and certain ” is simply absurd.
    II. It is impossible to maintain this action except upon the theory that the defendants agreed that the plaintiffs should sell the blankets delivered and not delivered for the defendants’ account, charging the usual commissions. This must be the “ contract,” if any, which the plaintiffs set up.
    1. The court will not infer or imply any such folly on the part of the purchasers, who are trading in the same city with the sellers. No such agreement can be made out, except by unfounded inference, or implication, or naked assumption.
    2. No such agreement is averred in the complaint. The complaint, indeed, discloses a warm dispute, but no agreement between the parties. The defendants give notice that they will return the goods, and the complaint says they did this “ under pretexts wholly unfounded.” The plaintiffs then give notice that if the blankets are sent back they will be sold for account of defendants. Kow it is nowhere averred that the defendants assented to the terms of this notice, and, indeed, such an averment would be incredible on its face. Until the plaintiffs aver that the defendants entered into this preposterous agreement, this action fails. The ex parte notice amounts to nothing. It is not a contract, or condition, or acquiescence on the part of the defendants. If the plaintiffs had said they must be paid a million of dollars if the goods were returned, they would have created as good and binding a contract on the part of the defendants as by giving the notice they did. We returned the goods as we proposed to do, and the more “ unfounded ” our “ pretexts ” the less likely is it that we made any “ agreement ” that the plaintiffs should slaughter them on commission for our account, on any terms a solitary designated purchaser might offer.
    
      James T. Brady, for the plaintiffs' (respondents.)
    The question presented by the demurrer, is merely whether on the above stated facts, conceded by the defendants, the plaintiffs have a right of action. If so, it is perfectly immaterial what amount they may be entitled to recover. That is to be determined at the trial.
    I. The contract is not void for uncertainty, as the defendants contend. The bargain speaks of, and relates to 3000 blankets ; some of $7.50, and some off $7.75, of the weight of ten pounds. It refers to no other. How many were for one price, and how many for the other, is mere matter of detail, to be settled by proof at the trial. In courts of equity, under the old system, it was well settled that “ an amount of uncertainty must be required in the specific performance of the contract in equity, greater than that demanded in an action • for damages at law.” The cases are collected in Fry on Spe
      
      cific Performance, Am. ed. p. 166, § 229.) If the agreement •be made certain by means of references furnished by the contract, it will be enforced. (Prater v. Miller, 3 Hawkes, 628.) So in Wiswall v. McGowan, (1 Hoff. Ch. 126,) it was held that where a contract refers to the subject, whether by a vague or an insufficient description, the defect may be supplied by other documents, coming from, or adopted by the party against whom the contract is to be enforced, pending and connected •with the transaction. In the present case, the agreement is oral. It relates to a given number of blankets. It is averred that “some” were to be of one price, and “some another.” It does not declare that the parties did not specifically agree how many of each there should be. But whether they did or not, that point can be settled at the trial, by proof of what the parties said or did, and the account rendered by the plaintiffs ; and the invoices they sent with the returned goods, will furnish, within the rule stated in Hoffman, a clear interpretation of the contract. If the defendants wished for more specific information, or fuller particulars before the trial, their remedy is not by demurrer, but by motion as prescribed in the Code. The policy of the Code is to make general allegations sufficient, and'a general demurrer to a complaint is only good when the facts stated do not constitute a cause of action; or, for. some of the other defects stated in section 144, neither of which is applicable in this case. The only question raised by a demurrer under this subdivision, is whether the plaintiffs, on the facts stated, are entitled to the relief which they claim, and it is immaterial whether that relief be legal or equitable. (General Mut. Ins. Co. v. Benson, 5 Duer, 168.) To make a pleading definite and certain, or to strike from it irrelevant or redundant matter, the remedy is by motion, not by demurrer. (See cases collected in Code of 1864, p. 325.) To obtain particulars the party must apply under the 158th section. Again. In this same connection the counsel for the defendants insisted, at special term, that the word “ securities ” as used in the complaint is not of such definite specification that the law can take cognizance of it. Webster’s Dictionary gives us one definition of “ security,” (citing Blacks tone,) “any thing given or deposited to secure the payment of a debt or the performance of a contract.” The complaint speaks of “securities of the government of the United States, issued in the month of January, 1863.” The meaning of this is plain enough. But even if it were obscure, or the words had a conventional or scientific meaning founded on the laws or language of trade, finance, or government, the contract would not be void.. The sense of the phrase would be a legitimate subject of proof. (1 Greenl. Ev. § 280.)
    II. The defendants also insist that the contract, if valid, is not for the sale of goods, but for the exchange of commodities, and the plaintiffs have not averred performance, or an offer to perform on their part. To this we answer, without admitting that the contract is not for a sale of goods, and because we deem it quite immaterial whether it is or not:
    1st. The averments in the complaint are sufficient. All the plaintiffs agreed to do was to verify their guaranty, and deliver the goods. They say expressly that the blankets were, as guaranteed under the second arrangement, and that they were delivering the goods, when the defendants under pretexts, all of which were false, refused to receive any more, announcing their intention to return what they had received.
    2nd. The act of the defendants prevented full performance. They cannot set this up, and thus take advantage of their own wrong. (3 John. 531. Higgins v. Solomon, 2 Hall, 482.)
    3d. Where the facts show that a tender of performance by the plaintiffs would have been refused, such tender is unnecessary. (Fry on Specific Perform. § 619, p. 374. Terwilliger v. Knapp, 2 E. D. Smith, 86.)
    4th. Besides, the new arrangement by its terms suspended and excused any further delivery of blankets by the plaintiffs, and permitted the return by the defendants, on certain conditions, of those which had already been delivered.
    III. It is also claimed by the defendants that they did not by way of express or implied assent receive the delivery, or agree to the conditions on which the return was made of the blankets already delivered. The defendants, by their demurrer, admit, as the complaint avers, that when they “ announced their intention ” to make such return, the plaintiffs informed them that if they did so, it would be on the express condition that they might sell the blankets on their account, &c. Thus notified they made the return. This was a submission to our terms. The defendants say that the plaintiffs should have refused to take hack the goods and tendered performance. We say that, (a.) If, as stated in the complaint, the pretexts of the defendants for returning the goods were false, they had no right whatever to make the return. If they insisted on sending them back in such a case, after due notification of the only terms on which the plaintiffs would receive them, they are liable. They might have returned the goods absolutely, or refused our conditions.
    (&.) If the conditions did not bind them, then the goods-were returned without any right, and we can so recover damages—to what amount is of no importance on this demurrer. (See Orguerre v. Luling, 1 Hilt. 383.)
    The defendants’ counsel referred to Coon v. Reed, (1 Hilt. 511,) in which case the buyer of a horse, warranted sound, refused to pay, and offered to return the animal. The seller refused to receive him. Then the buyer put him into a stable from which the seller afterwards took him. This was held to be a rescisión of the contract. But suppose in that case when the offer was made to return the horse, the seller had said to him “I will receive him only on the express condition that I do so to sell him on your account, and hold you responsible for the difference between the agreed price and the amount obtained on the second sale,” and the buyer had therefore placed the halter in the seller’s hand, can it be pretended .that this would have been a pure and simple' rescisión of the contract ?
    IY. It is contended that even if under the second arrangement the plaintiffs might sell the blankets for account of the defendants, yet this should have been done on more specific notice, and at auction sale, or “ in the usual and customary manner,” the learned counsel adding, “ whatever that may have been, and for the best price that could have been obtained therefor.” We rely on the case of Oroolcs v. Moore, (1 Sand/. 297,) as well as he. But. no case holds that the parties may not stipulate as to how one may sell for another. The complaint alleges that the blankets were returned and received on the express condition that the plaintiffs might sell all of them at market prices, and to the government of the U. S. Under this there could be but one purchaser. It is also averred that thereafter the plaintiffs informed the defendants of the “ terms ” on which they proposed to sell, and that they sold for the best price they could obtain. That fully satisfied any and every requirement which any rule of law, trade, morality, or usage could exact.
    Y. The defendants say that they are not informed by the complaint for what prices the blankets were sold, nor the amount of expenses, &c. They already know these facts from the account rendered- as averred in the complaint. If they really need further information, we have already seen how they may obtain it under the Code.
    YI. The defendants claim that no breach on their part is averred. The complaint alleges that under the agreement made with them there was due to the plaintiffs after selling the blankets and deducting charges $8659.46, which account was correct, and that such amount is due and unpaid. The value of government securities has nothing to do with the case. Those securities were to be taken in payment for the blankets if the contract of sale had been performed on both sides. But when the defendants resolved to return, and the plaintiffs agreed to receive the blankets on an express condition, the plaintiffs were to hold them responsible for any loss or expense, not as measured by government securities, but in dollars and cents. No demand, therefore, was necessary.
   Robertson, Ch. J.

The breach of the two contracts- set out in the first three successive numbered paragraphs contained in the complaint, does not constitute the cause of action in this case, but merely forms the consideration for the third contract assumed to be entered into by means of acts and declarations of the parties set out in the fourth and fifth paragraphs. It, in substance, is, that in consideration that the plaintiffs would receive back from the defendants merchandize delivered by-them to the latter under the first of such contracts, and would sell to the government of the United States the same and other merchandize, to be delivered under such prior contract at the then market prices, they, the defendants, agreed to pay to the plaintiffs the difference between the sum so to he paid by the United States on such sale thereof to them, and the price agreed by the defendants to be paid therefor by such prior contract of sale. The complaint claims that such contract arose by the return to the plaintiffs, by the defendants, of the merchandize so originally delivered to them by the former under such prior contract, after a threat by the latter so to return them upon certain pretexts averred to be unfounded, and a notification by the plaintiffs, to them, that if they did so, they, the plaintiffs, would sell all of such merchandize in the manner before mentioned, and hold the defendants responsible for the before mentioned difference in the price. The main, if not the sole, question arising on the demurrer interposed in this case, therefore, evidently is, whether such a contract could be created by such acts and declarations; since it is evident that the plaintiffs would not be entitled, under either of the first two contracts set out in the complaint, to sell such merchandize in that mode to the government, and hold the defendants responsible for the loss, without a tender of the whole of it, and a demand of the purchase money.

The first contract set out in the complaint was one by the plaintiffs to sell to the defendants a certain quantity of merchandize, at a certain price, payable in securities of the government of the United States, such merchandize to correspond with certain samples. The second of such contracts was, that in consideration that the plaintiffs would undertake that the part of such merchandize already delivered, and the residue to be delivered under such first contract, should be, or was, of a quality to pass inspection by the United States 'government, the latter agreed to release the plaintiffs from their warranty as to the correspondence of such goods with the sample, and to accept the same as a compliance with such first contract. The recital of the two first contracts was, therefore, mere matter of inducement for setting out the alleged third one, and any want of definiteness in their details could be cured on motion, so as to fix their identity, and was not a subject of demurrer. “ Securities issued by the government of the United States,” is also a sufficiently certain allegation, on demurrer, whatever it may be, on motion to make more definite and certain.

But I am at a loss to perceive how, in regard to the main question already presented, a contract could arise between the parties by the proceedings stated in the complaint. The defendants threatened to send back the goods received by them, as not being bound to retain them under their second contract; under what pretext is immaterial, unless the plaintiffs were now seeking to hold them under such second contract. The plaintiffs, instead of refusing to receive them, and claiming to hold the defendants liable under such second contract, merely notified them that they would only receive them upon the terms mentioned in the complaint. There is no allegation therein, that the defendants, in any way, acceded to such terms, or that they originally proposed any thing like them. . Without such an assent, it must be presumed that the defendants sent back such goods under their original threat, and not as an acceptance of such a proposition. If the defendants were, by the original contract, entitled to return unconditionally goods delivered to them, as not being a compliance with its terms, they could not be compelled by the plaintiffs to relinquish such right and enter into a new contract by the receipt by the latter of the goods so returned, upon terms declared by them to be the condition of such receipt, unless they were also assented to by the defendants as the condition of their delivery.

It was a matter of no consequence whether the pretext on which the threat to return the goods were based, was well or ill founded, so long as such return was made in pursuance thereof, and not in consequence of any actual assent, express or implied, by the defendants to the terms proposed by the plaintiffs. The very fact of having made such threat, followed by such a notification of the plaintiffs, founded thereon, would take away from the subsequent return, by the defendants, of such goods, unaccompanied by any declaration, any implication of an assent thereby, to the proposed terms of the plaintiffs ; and would leave the parties entirely to whatever rights they had after such return, and acceptance under the prior contracts. Possibly such notification, by. the plaintiffs, may have taken away from the acceptance, by the plaintiffs, of the returned goods, the character of an acknowledgment that their delivery was not a compliance with the original contract, upon which I do not undertake now to pronounce, but I do not see that it was available in any other way; it certainly could not drive the defendants to the alternative of either renouncing whatever right they might have had of returning such goods under the prior contract, or accepting the terms of the plaintiffs, called in the complaint a condition of such return.

I think, therefore, the complaint was defective, in substance, and judgment should have been given for the defendant on the demurrer ; and, therefore, the present judgment should be reversed, with costs, with the usual privilege to the plaintiffs.

Barbour, J.

Assuming, even, that the allegation contained in the second item of the complaint constitutes a sufficient averment that the defendants undertook and agreed to take and pay for the blankets, and is not, merely, a statement of the legal effect of some supposed intention or agreement on their part, (which' is, at least, very doubtful,) it seems ■ quite clear that the whole of the goods were to be delivered to the defendants thirty days before the plaintiffs would have a right to demand payment. It was one sale of three thousand blankets ; and they were to be paid for,/6 to the amount of the entire purchasewithin thirty days after the one 66 delivery ” contemplated by the agreement. The delivery of the whole of the blankets, therefore, was, by the contract, a condition precedent to any performance on the part of the defendants ; and an averment of that fact is essential to the plaintiffs’ recovery, unless the original agreement was modified by some subsequent arrangement between the parties, inconsistent with the obligation of the plaintiffs to deliver all of the goods.

There is no pretense that the defendants ever refused to receive such of the blankets as had not yet come to their hands, nor that they, in terms, waived the delivery thereof. But the plaintiffs, claim that the return of a portion of the goods by the defendants, under the circumstances detailed in the fourth item of the complaint, operated as a waiver on their part of the delivery of those which had not been received by them.

It does not appear that any certain lot or parcel of blankets was exhibited to the defendants, or spoken of by the parties, at the time the original contract was made ; and, in the absence of such averment, it may well be assumed that the agreement on the part of the plaintiffs would have been satisfied by the delivery of any three thousand blankets that were of a quality and description corresponding to the sample. The fifteen hundred which were delivered were not of this quality; and an arrangement under which they were to be retained by the defendants notwithstanding that objection, was thereupon made by the parties. But no delivery of the remaining half was made or offered by the plaintiffs, nor were those blankets objected to by the defendants ; nor, even, do the undelivered blankets appear by the complaint to have been included in the agreement set forth in the third item. The plaintiffs, therefore, were bound, notwithstanding that agreement, to deliver, for the remaining half, such blankets as should correspond with the sample. It is enough, however, that fifteen hundred of the blankets are still undelivered; the plaintiffs cannot recover unless they have shown by the fourth paragraph of the complaint that the defendants, by the return of the goods under the circumstances therein stated, have waived the performance of the original contract on the part of the plaintiffs, and, for a sufficient consideration, have undertaken to pay to the latter the difference between the purchase price of the goods and their market value, with the expenses of the sale.

There seems to have been no consideration whatever for such supposed waiver and undertaking, inasmuch as there was no agreement that the defendants should not be required to receive the three thousand blankets, corresponding with the sample, or of such a quality as would pass government inspection, and pay for them. Neither does it appear, nor can it reasonably be implied from the facts set forth in the fourth paragraph of the complaint, that the defendants ever assented to the terms upon which the plaintiffs consented to take back the blankets which had been delivered. On the contrary, it is quite apparent that the defendants- returned those goods under certain pretexts ” wholly inconsistent with the theory of the plaintiffs in this regard, and not because they assented, by their silence or acts, to the proposition of the latter. The plaintiffs have, therefore, failed to show such a performance or waiver of their contracts as entitle them to a recovery ; and, for that reason, the demurrer should have been sustained.

The complaint is also insufficient, for the following reasons :

First. According to the terms, upon which the defendants returned the goods, as claimed by the plaintiffs, the blankets were to be sold by the latter to the U. S. government at the mai'ket prices. The complaint does not allege that they were in fact sold for their value in the market, but only for the best terms the plaintiffs could obtain therefor from the government. That is not enough. We cannot assume that the price paid by the government was the market value ; and the plaintiffs, clearly, had no authority to sell the goods for a less price than that.

Second. The allegations of the complaint in that respect do not show that the plaintiffs sustained any loss, or incurred any expense, by reason of the return of the goods and their sale to the government. The averment that an account was rendered by the plaintiffs showing that the defendants were indebted to them in a certain amount, is not sufficient. The facts should be stated directly, and not inferentially.

The order appealed from should be reversed, with costs, and an order entered directing a judgment for the defendants on demurrer, subject to the usual conditions.

McCunn, J. dissented.

Judgment reversed.  