Cinque v. Cassani

Cullen, J.: ■ This action is brought, to .recover damages for the failure of the defendant to deliver 500 barrels of wine under a contract made between the parties for that purpose. The written agreement, though sufficient, is quite informal in its character. It fails to specify any time for delivery. It was made oil the 30th day of May, 1898. The defendant resided in California, and the wine was to be shipped from that State. The plaintiff testified that he told the defendant to ship the wine. 50 barrels a month, but the whole of it to be delivered before Christmas. Only ISO barrels were delivered to the plaintiff, which were shipped in the autumn. In January, 1899, the plaintiff met the.defendant and asked-for the remainder of the wine, to which the latter responded, “ No, I cannot give you any, because I am short; after, I will.” The plaintiff asked him when he would deliver the wine, and testified concerning the reply, “ Wei], he told me he would let me know.” Immediately thereafter the plaintiff brought suit. The record before us is very meagre, but the action of the learned trial judge seems to have been dictated by the view that the defendant was not shown to have been in default in his contract. In this opinion we are unable to concur. The written agreement being silent as to the time of delivery, the law imports that the delivery was to be made .within a reasonable time. It was competent, however, for the parties, by subsequent [385] oral agreement, to fix the time for delivery. (Smith v. Halligan, 17 N. Y. St. Repr. 203.) If the conversations testified to by the plaintiff were sufficient for the purpose, then the delivery should have been completed before Christmas, and the defendant was in default. If the original contract was not modified or affected by the subsequent oral negotiations between, the parties, then, at least, it was a question of fact for the jury to determine whether a reasonable time for the delivery of the wine had not expired before the suit was brought. Of course the time for delivery could be extended orally, and a prior default in delivery might in the same manner be waived. We do not think that the conversation in January, testified to by the plaintiff, constituted necessarily, as a matter of law, either a waiver or extension of time. It presented a question of fact for the jury as to the intention of the plaintiff and the effect of the conversation. The contract on its face was an entire one, and under it it was necessary for the defendant to deliver the whole quantity of wine agreed to be sold, before he \yas entitled to demand payment from the plaintiff. (Baker v. Higgins, 21 N. Y. 397; Mount v. Lyon, 49 id. 552; Nightingale v. Eiseman, 121 id. 288.) Probably the jury might find a modification of the contract in this respect from the shipment of the wine in separate lots over a long period, and the fact that the plaintiff assumed to pay for each delivery. 'But according to the testimony of the plaintiff he had paid in full, either in merchandise or in notes, as required by the contract, for the wine received by him ; therefore, the dismissal of the conhplaint cannot be justified on the ground that the plaintiff was in default. It was necessary that the plaintiff should prove a readiness on his part to pay for the wine, or rather, give his notes for it, upon its delivery. He gave no testimony to this effect on the trial,- but no such point was there made, and it cannot be now raised for the first time. The judgment should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment reversed and new trial granted, costs to abide the event.