
    Cornwell et al. v. Haight.
    
      Conditional Contract.— Waiver.
    
    Where the defendant had contracted to sell and deliver rye, corn and oats, at stipulated prices, on security being given for payment; and he delivered the rye, without exacting security, and received payment therefor; it was held, that he was not justified in refusing to deliver the other grain, on the ground that the plaintiffs’ failure to give security had discharged the contract. The defendant’s conduct was a waiver as to the rye delivered, and the plaintiffs were entitled to a performance of the residue of the contract, on tendering security.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment of nonsuit had been affirmed.
    
    This was- an action to recover damages for the nonperformance of a contract for the sale and delivery of a quantity of grain. By the contract, made on the 20th January 1847, the defendant agreed to sell and deliver to the plaintiffs, during the month of February, certain quantities of rye, oats and corn, at a stipulated price. The delivery was to be made at the railroad station, at Chatham Four Corners, and to commence on the following- day. As the plaintiffs might not be at the station, on the arrival of each load, it was stipulated that the plaintiffs should procure one William A. Lord to become security for performace on their part. The defendant delivered the rye, *and received payment without security, having been previously given; and refused to perform the residue of his contract, on the ground that the plaintiffs had not given the stipulated security, at the time of the first delivery under the contract. The plaintiffs offered to pay in advance, or to give the security agreed upon, and demanded a fulfilment of the contract, which was refused.
    Upon the close of the evidence, the learned judge non-suited the plaintiffs, to which they excepted; and the judgment having been affirmed at general term, this appeal was taken.
    
      Parleer, for the appellants.
    
      Reynolds, for the respondent.
    
      
       For a report of this case, on a former trial, see 8 Barb. 327.
    
   Davies, J.

A reference to the opinion delivered in this court, when the cause was here before, reversing the judgment of the supreme court in favor of the plaintiffs, and granting a new trial, will show that such reversal was made upon the ground of error in the charge of the judge who tried the cause. He had charged the jury, that if the defendant had delivered the rye, or any part thereof, after he had a right to exact security, by the terms of the contract, he had waived the security, and had no right to exact it, as to the oats and corn, not delivered. This was held to be erroneous by this court. It was said, that it was clear, that the defendant might waive the performance of the stipulation, but that it by no means followed, because he chose to deliver a part of the property sold, without exacting the security, he ivaived it altogether. It Avas added, that “ the utmost effect of the defendant’s partial delivery Avas, to waive the condition as to the property actually delivered, but that he had a right, at any time in the progress of the delivery, *to stop and insist upon the performance of the plaintiffs’ engagement to give security.” We are to regard, then, the defendant as having dispensed with the requirement of security, so far as the rye was concerned. That part of the contract may be regarded as having been performed to the mutual satisfaction of the parties, or it may be considered as entirely out of the case.

What then were the rights and duties of the parties cm to the residue of the contract; or, assuming the contract to relate only to the oats and corn, in reference to that contract? That was all of the original contract which remained unperformed, and it may be regarded as an independent contract. As the proof now stands, the plaintiffs required performance on the part of the defendant, and offered the security agreed upon, or to pay in advance the contract price of the corn and oats. The defendant refused to perform on his part, not upon the ground that the plaintiffs did not offer to °do all that they had agreed, but upon the ground that not having given security as to the rye, the whole contract fell through, and the defendant ivas excused from performing the residue of the old contract, or the independent one. In this view the judge at the circuit manifestly concurred, in nonsuiting the plaintiffs. But a slight consideration of the point presented will show it to be untenable.

Assuming, as we may, that the contract as to the rye was an independent contract, and had been fully executed, in accordance with the agreement, and to the satisfaction of the parties, then the derendant’s position is this: “ the plaintiffs not having performed another contract in the precise manner it was agreed it should be performed, though the precise form of performance has been waived by mutual consent, and a different performance accepted, yet, I am discharged, in consequence, from performing another agreement with the plaintiffs, although they are ready and offer to perform it on their part, in exact conformity with its terms. It can be hardly necessary to add, that such a defence cannot avail the defendant. As this court held in this case, the security ivas only Aimived as to the rye delivered; as to the oats and corn, the defendant had the right to exact the security, and the same being tendered by the *plaintiffs, no excuse is shown for non-performance of the contract on his part. The plaintiffs have proved more on this last trial than they were called on to estab; lish, to entitle them to recover. They were under no obligation to make a tender of the security; it is enough, that they were ready at the time and place appointed for the performance of the contract, to receive the corn and oats, and give the security. (Coonley v. Anderson, 1 Hill 523; Bronson v. Wiman, 8 N. Y. 182-8.)

The time then appointed, so far as relates to the oats and corn, may be held to be that at which the interview between the parties took place, after the delivery of the rye. Even, therefore, if the plaintiffs, under the circumstances, could have been required to have been ready, at the time and place, to have performed on their part, it is quite clear, that they were so, and intended strictly to have complied with the terms of their contract. But readiness or a tender on the part of the plaintiffs were not necessary, under the facts disclosed in this case. It is quite clear, that the defendant had previously made up his mind not to comply with the contract; and readiness and a tender by the plaintiffs, under such a state of facts, would have been an idle ceremony. The acts and declarations of the defendant were equivalent to notice to the plaintiffs, that he did not intend to comply with the terms of the contract on his part and perform it. A tender, therefore, by the plaintiffs of the security, was not called for. (Crary v. Smith, 2 N. Y. 60.)

The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

Welles, J.

Assuming that, by the contract, the plaintiffs were bound to give security for the payment of the purchase-money of the grain, before any part was delivered, the' defendant had waived the security, so far as the rye was concerned, which was all paid for. Then, the price having advanced on com and oats, and the defendant having been overpaid on the rye delivered, the plaintiffs offered, among other things, to give security for the payment of the corn and oats. The defendant refused to receive the security, or to deliver any *more of the grain. This refusal relieved the plaintiffs from any obligation to tender the security, formally, as that would then have been an idle ceremony. The conduct of the defendant, in delivering the rye without security, and afterwards receiving the pay for it without objection, was calculated to throw the plaintiffs off their guard, and to lead them to suppose that the corn and oats would be delivered in like manner; and on the first intimation afterwards, that the defend mt made a point of having security, they offered to give it, and we are to assume that they were ready to do so, and would immediately have given it, in pursuance of this offer, if the defendant had not then put himself upon the ground that the plaintiffs had forfeited their rights to demand the delivery of any more grain.

For these reasons, I think, the judgment of the supreme court should be reversed, and a new trial granted.

Judgment reversed, and new trial awarded. 
      
       See Bunge v. Koop, 48 N. Y. 225; Sears v. Conover, 3 Keyes 113; Hayden v. De Mets, 2 J. & Sp. 344.
     