Opinion
December 28, 1921.
Patrick J. Tierney, for the appellant.
Wallace E. Pierce, for the respondent.
Present — JOHN M. KELLOGG, P.J., WOODWARD, COCHRANE, H.T. KELLOGG and VAN KIRK, JJ.
The jury has necessarily determined that the potatoes were to be taken by the plaintiff before Thanksgiving, or at the first run of sleighing. A short time before Thanksgiving the plaintiff sent bags for the potatoes, with a statement that he would send teams the following Monday or Tuesday for them, and the defendant filled the bags, together with other bags which he had, for delivery. The first run of sleighing was not until January eighth to the tenth, and upon the seventh day of January the defendant called upon the plaintiff and asked for $100 on account, which the plaintiff refused to give. The defendant arranged with the bank that it would discount his note with the plaintiff as indorser, and the defendant obtained the indorsement and discounted the note at the bank, and used the proceeds. Shortly after that the plaintiff sold the potatoes to the Vermont Fruit Company. The representative of the company notified the defendant of the purchase and arranged with him that he was to deliver the potatoes on the cars at the railroad station for thirty cents per bushel, the delivery to begin January twenty-eighth. The delivery began and 220 bushels were delivered up to February fifth, when the company notified the defendant that no more cars would be furnished. Apparently the defendant considered that that ended the contract. Two hundred and twenty bushels of the 300 purchased had been delivered to the fruit company and paid for. The tender by the plaintiff of eighty dollars, in the latter part of April, and the demand for the 80 bushels of potatoes, was not within a reasonable time, and did not require the defendant then to make delivery. Concededly the delivery of a part of the potatoes, after the day of delivery had passed, was a waiver of the plaintiff's default; but the plaintiff was bound to perform within the time contemplated by the agreement which made the extension. When the fruit company refused to receive at the cars the balance of the potatoes, it violated the terms upon which the waiver had been made, and the defendant then had the right to assume that the contract had been abandoned. The request to charge that the defendant must, after the fruit company declined to receive more potatoes, make a demand upon the plaintiff for performance within a reasonable time, was, therefore, properly denied. The judgment should, therefore, be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.