
    John E. Ackerman et al., App’lts, v. The Astoria Veneer Mills & Lumber Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Contract—Breach.
    Defendant contracted in writing to sell to plaintiffs certain lumber to be shipped from time to time, the price to be a specified rate per thousand feet, f. o. b., Louisville, Ky. After three consignments were made, a disagreement arose, plaintiffs claiming to be entitled to ten days after delivery to make payment, while defendant claimed that payment was due when the lumber was loaded on the cars at Louisville. After some negotiation defendant’s manager refused to deliver any more lumber unless the cash was paid in Louisville, but plaintiffs continued to treat with defendant’s agents for a further delivery on their terms, but finally, not succeeding, refused to receive any more- unless they had the ten days’ credit. Held, that plaintiffs, by continuing to treat with the agents, invoking performance on their understanding of the contract, after the prior refusal of defendant, lost their right to complain thereof as a ground of darhages.
    Appeal by plaintiffs from a judgment dismissing the complaint, • entered upon a verdict by a jury in favor of defendant.
    The action was one for breach of contract, it being alleged by plaintiffs that defendant having refused to furnish lumber according to contract, that plaintiffs were obliged to go into the open market and buy other lumber to supply their orders, and that plaintiffs then commenced this action for damages for breach of contract, having first tried in vain to get the lumber from defendant by offering to extend its time for delivery.
    
      Fhoing, Southard & Fairchild, for app’lts; George W. Stephens, for resp’t.
   Daniels, J.

The object of this action was the recovery of damages for the non-performance of two contracts for the delivery of walnut lumber by the defendant to the plaintiffs. The contracts were in writing, and they were made in the year 1887. The first of these contracts is in the following words and figures:

New York, June 27, 1887.

We have this day sold to J. B. Ackerman & Co. the following shipping walnut for delivery at any time, or times, during the next six months ; the shipments to be commenced as soon as possible after this date in any quantities; the price to be $90 per thousand feet, less 2 per cent f. o. b., Louisville, Kentucky:

50,000 feet, 1 inch, 10 inches and over 20,000 “ 1| “ wide, 12 feet and 20,000 “ 2 “ up long. 5,000 “ 2Í- “ 15,000 “ 3 “ 15,000 “ 4 “ 125,000 feet.

Astoria Veneer Mills & Lumber Co.,

W. H. Williams, Manager.

The second consisted of a proposal made by the defendant to the plaintiff on the 28th of September, 1887, for the sale of 170,000 feet of walnut lumber, to be delivered on or before the 1st of April, 1888, for the prices therein mentioned, and on terms in other respects similar to those contained in the first agreement. This proposal was accepted in writing on the following day by the plaintiffs, but none of the lumber mentioned in it was at any time' delivered to the plaintiffs.

After the making of the first contract three consignments of the lumber mentioned in it were made by the defendant to the plaintiffs and paid for by the latter. The consignments included about 36,000 feet, the last having been made on the 18th of November, 1887, leaving much the larger part of the contract unperformed.

It was alleged by the plaintiffs that the defendant had refused to proceed further in the performance of either contract, and had thereby become liable in damages to the plaintiffs. To support this allegation, evidence was given showing disagreements to have arisen between the parties concerning their rights and obligations . under the agreements, but more especially relating to the performance of the first one that was made. The claim was advanced by the plaintiffs that they were entitled to, and that there had been an understanding that they should have, ten days after the delivery of the lumber at the city of New York to pay the price of each consignment delivered. This was denied by the defendant, whose agents insisted that the price of each consignment became payable at the yard, or as soon as it was laden upon the cars at the city of Louisville.

Precisely when this position was first taken by the defendant was not shown by the evidence, but it surely appeared as early as the letter of the 5th of November, 1887, was received by the plaintiffs, for in that letter it was stated by the writer, who subscribed himself the manager pro tem. of the defendant, that he had consulted with Mr. Williams, who was the general manager of the company, and was informed by him, “ that when the contract was made, it was understood to be spot cash.” And in a letter written to the plaintiffs on the 9th of the same month, and subscribed by Mr. Williams, this passage is contained, “ as I told Mr. Ackerman at the time he visited us, that there was some slight feeling on the part of the company a-s regards payments, it is useless for you to argue this matter with" them, as Í know of my own knowledge that they will insist on payment on yard at Louisville.” Neither letter contained a direct refusal to deliver without payment being first made at, Louisville, while both evinced that to be clearly the final design. And as no date has been given to the interview at the branch office between Mr. Williams and Mr. Bodamor, one of the plaintiffs, it is reasonably to be inferred that it took place after these letters. For in that interview still more positive ground was taken as to this claim than had been disclosed in the letters.

At that time Mr. Williams testified: “ I positively refused to deliver them another inch of goods, without the cash was paid in Louisville, under any circumstances.” And if this had been accepted as final and decisive by the plaintiffs, it would have supported their action for damages, provided the contracts should be construed to entitle the defendant to payment only after the consignment arrived at New York, and was there examined and accepted by the plaintiffs. But they did not act upon it as a termination or breach of the defendant’s obligations under the contracts. They continued, on the contrary, to treat with the agents of the defendant for the further delivery of lumber on their own terms, to which there was a refusal to accede on the part of the defendant. At the time of this refusal, the same witness continued his testimony by adding that “ they simply wanted to get the goods, and' I notified them again to go down to Louisville, there was some •eighty thousand feet ready there.” And at the same time he stated that there was a car-load at New York which this partner wanted delivered, and wanted ten days on it. But the witness refused to deliver it, and said that he was going to keep it till paid for. And this condition of the affairs of the parties seems to have continued until a later and final interview took place between the same partner and Mr. Bodamor, who was the defendant’s agent or broker at the city of New York. His testimony was that this was probably sixty or perhaps thirty days after the last delivery, which would make the time about the 18th of December, 1887, or of January, 1889. His evidence was that, at that time, Mr. Bodamor said “he would not accept any more unless he had ten days’ credit on it after its delivery in New York. And I said I decline to go on with that contract, my share of it,” which seems to have terminated the interview. After that the plaintiffs by letter of the 22d of March, 1888, made further overtures and proposals after, as it was stated, an interview with Mr. Williams, in which they wrote that they wanted the lumber badly, and “ would be perfectly willing to make any reasonable compromise that might be mutually satisfactory, whereby a later date might be named for the completion of the same. That we are ready and willing to receive and pay for the lumber within ten days after arrival and inspection here, and that if a compromise date was agreed upon, that we would receive the lumber as fast as desirable.” But no action was taken on this letter resulting in any change of the situation. And this letter, as well as the evidence of Mr. Bodamor, ■ confirms the probability that the plaintiffs did insist on this credit of ten days. He testified that it was to include no more than the time required for lighterage and inspection of the lumber, which would consume about that period. But the defendant’s evidence tended to prove the requirement to be for an absolute credit of ten days, irrespective of these acts, and after the delivery should become complete. Who was right in this disagreement it was for the jury to decide, and they determined the scale in favor of the defendant, thereby finding that the plaintiffs were not willing to receive the lumber without a credit for the price of a fixed period of ten days after its delivery. Neither contract gave them the right to that credit, and the refusal to receive the lumber otherwise was a refusal to perform. And as the plaintiffs did not elect to stand upon the preceding refusal of the defendant to send the lumber forward, without the payment of its price at Louisville, but continued to deal and negotiate with the agents of the defendant for a different adjustment of their differences, and maintained the contracts as still subsisting, invoking performance on their own understanding of them, they lost their right to complain of this prior refusal of the defendant’s managers and agent as a ground for damages in the action. They elected to temporize and negotiate rather than assert a matured right of action, and thereby waived that technical right. And for that they were defeated at the trial.

There are no exceptions in the case to support the appeals, but they depend altogether on the action of the jury upon the evidence. That action is sustained by the facts the jury must have found were proved, and the judgment and order should be affirmed.

Van Brunt, P. J., and Brady, J., concur.  