Nightingale v. . Eiseman

Earl J. On the 4th day of January, 1886, the plaintiffs were manufacturers of silk, at Paterson, New Jersey, and the defendants were dealers in silk, doing business in the city of New York. On that day, an agent of the plaintiffs, who was engaged in selling silk for them on a salary, called upon the defendants at their place of business and took from them the following order: it Order No. 11. Jcmucvry 4th, 1886. Ship by Ex. Eiseman & Co., Bill Mach. Grand St., City. Duplicate No. Term, 6-10 1 per cent, special. 25 pcs., Feb. 20. 50 “ Mch. 1st. Balance before Mch. 15, _ or earlier if possible. Delivery. 100 pcs., 19 in. Surah, @ 60c.” No. 756. *292 Then follows a statement of the colors of the different pieces to he furnished. It was proved that the figures 6, 10, 1, following the word “ Term,” meant six per cent off from the bill for the silk, one per cent extra discount, and the silk to be paid for ten days after delivery. The order having been sent to the plaintiffs by their agent, on the next day they wrote to the defendants, that they had received their order and would endeavor to forward the goods “ as near as possible to the time specified.” About the thirteenth of March, they shipped from Paterson, to the defendants at Mew York, seventeen pieces of the silk, and never, thereafter, shipped any more; and they commenced this action on the thirteenth of April thereafter to recover the contract-price of the silk delivered. The defend, ants refused payment before the action was commenced and defended the action on the ground that the plaintiffs had not performed their contract. If we assume that the contract, as made by the plaintiffs’ agent, is to be considered modified by their letter to the defendants, so that they were bound to deliver the silk only as near as possible to the time specified in the contract, yet in any event the contract bound them to deliver at some time. If the circumstances were such as to excuse the plaintiffs from delivery at the time specified in the contract, yet they were bound to deliver, and they could perform their contract only by delivering the silk at some time. We are inclined to the opinion that the contract should be treated as an entire contract to deliver the one hundred pieces, and that none of the silk was to be paid for until ten days after the delivery of the whole. But, if such be not its proper construction, and the defendants were bound to pay for each of the installments of silk specified in the contract within ten days after the delivery thereof, the plaintiffs were bound to make at least one complete delivery before they could call upon the defendants for any payment. The defendants, in no way, so far as the evidence discloses, waived complete performance. The seventeen pieces of silk were shipped to them from Paterson. They had no reason to suppose that the plaintiffs intended that ship *293 ment as a compliance with their contract to ship twenty-five pieces; and so, when they received the seventeen pieces, they had the right to suppose that they would he followed by a further shipment, and that the plaintiffs would continue to perform their contract. They could, therefore, receive the seventeen pieces without waiving their right tc demand further performance before they could he compelled to pay.. A.t the very first time when they were called upon to speak, that is, when they were asked to pay for the seventeen pieces, tliey refused payment on the express ground that the plaintiffs had not performed their contract, and promised that they would pay when the balance of the silk was received, and not before. Therefore, whether we regard this as a single contract by which the plaintiffs were bound to deliver one hundred pieces of silk before they could demand any payment, or whether we consider the defendants hound to pay for each delivery specified in the contract, we think the plaintiffs are not entitled to recover; and for this conclusion the authorities in this state are so abundant that they need not he cited. At the trial the counsel for the plaintiffs asked one of their witnesses, the agent who took the order from the defendants, the following questions: “ Aiter you took this order did you have any conversation with the defendants, or either of them, with respect to the delivery of any of the goods under this contract % ” “ After the taking of that order what conversation did you have with the defendants in regard to the delivery of the first installment of pieces referred to in the contract ? ” These questions were objected to on the part of the defendants a# immaterial, and were excluded by the court. The counsel did not disclose what he expected to prove by these questions, and it is impossible to discover what competent evidence could have been elicited by them. No claim was made at the trial that the contract had in any way been changed; and the court, therefore, committed no error in excluding the questions. One of the plaintiffs, as a witness, was asked the following questions by his counsel: “ State whether or not, hut for the *294 strike of the laborers employed in your mill, you would have been able to deliver the goods ordered by the defendants at the time stated in the order, or within a reasonable time thereafter ? ” “ State whether or not the strike of the laborers interfered with the delivery of a portion of the goods ordered by the defendants at the time named in the order given by them?” These questions were objected to by defendants’ counsel as incompetent and immaterial, and were excluded, lío complaint was made at the trial that the plaintiffs did not deliver the seventeen pieces of silk in time. The sole complaint was that they did not deliver even the twenty-five pieces required for the first installment; and any evidence which could have been elicited by these questions could show no justification for a failure to make such delivery at some time before the action was commenced, and, therefore, the questions were properly excluded. The judgment is clearly right, and should he affirmed. All concur. Judgment affirmed.