#### REYNOLDS v. SPENCER et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Sale—Delivery after Specified Time.

The seller o£ goods contracted to deliver them to a carrier, for the buyer, on or before Blay 1, 1893, but, no delivery having been made within that time, the buyer, about September 1st, notified the seller that unless the goods were delivered immediately he would refuse to accept them. *Held,*that a delivery to the carrier on Blarch 6, 1894, was not a performance of the contract, as extended.

Appeal from judgment on report of referee.

Action by William B. Reynolds against Lydia Spencer and another to recover damages for breach of contract. Judgment was entered in favor of plaintiff, and defendants appeal.

Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

George P. Wood, for appellants.

O. H. Everts, for respondent.

MERWIN, J.

The defendants in 1893 were partners doing business at Union Springs, Cayuga county; N. Y., under the firm name of the Spencer Manufacturing Company; and the plaintiff lived in Hector, Schuyler county. In January, 1893, the plaintiff' and the defendants entered into an agreement by which the defendants agreed to make and deliver to the plaintiff, on board the cars at Union Springs, on or before the 1st day of May, 1893, one drag saw, *751with the appurtenances thereto, of the agreed value of $75, which the plaintiff agreed to pay by delivering to defendants certain property, of the value, as the referee finds, of $75 and upwards. The plaintiff, in pursuance of the agreement, delivered his property to the defendants on the 13th February; and the defendants received the same, and appropriated it to their own use. They did not, however, perform on their part, by delivering to plaintiff the property he purchased; and, as the referee finds, it has never been delivered. This action was brought on the 10th March, 1894, to recover of defendants the sum of $75, as damages for the breach by defendants of the contract; and the referee has awarded to plaintiff that amount, with interest from June 1, 1893.

In defense, the main claim of the defendants is that on the 6th March, 1894, they delivered the property on board the cars at Union Springs, billed to the plaintiff, and sent him, by mail, the shipping bill. This, it is claimed, was, under the contract, a delivery to the plaintiff, so that the plaintiff, at the time of the commencement of the action, was constructively in possession of the property, and therefore not in a position to maintain the action. There is evidence that on the 6th March the defendants delivered at Union Springs certain articles, and mailed to plaintiff the shipping bill. The plaintiff testifies that he never received the bill, and knew nothing about the delivery at Union Springs until long after the commencement of the suit, and that he refused to receive the property. It is not claimed that the plaintiff ever accepted the property. There is evidence that the articles, as delivered at Union Springs, did not comprise all the articles that, under the contract, were to be delivered by the defendants, as constituting “the drag saw and its appurtenances.” If so, it would not be a good delivery. A delivery to a carrier, to be effective, must be of the quality and description and in amount as called for by the contract. Mee v. McNider, 39 Hun, 347; Gutwillig v. Zuberbier, 41 Hun, 363; Benj. Sales (Bennett’s Ed.) 330. Besides, a delivery on 6th March, 1894, is not performance of an agreement to deliver on or before May 1, 1893. In Benj. Sales,-330, it is said that a delivery of goods to a carrier at a much later time than ordered does not bind the purchaser to accept them; citing, among others, the case of Rommel v. Wingate, 103 Mass. 327. But the defendants claim that the time for delivery was extended. On this subject the referee finds, on sufficient evidence, “that at different times between the time when said drag saw was so to be delivered and the 1st day of January, 1894, the plaintiff requested the defendants to deliver the same to him as they had agreed to do, and that on or about the last day of August or first of September, 1893, the plaintiff requested the defendants to deliver said drag saw to him immediately, and gave them notice that, if they did not deliver the same forthwith, he would have no use therefor, and would refuse to accept the same.” This notice was never withdrawn or modified or waived. At least, it should not be said, as matter of law, that there was a waiver. The finding of the referee is, in effect, against the defendants on this subject. We are of the opinion that the attempted delivery on the 6th March did *752not bind the plaintiff, and, in the absence of an acceptance by plaintiff, is no defense to the action. We are referred to the case of Bunn v. Steubing, 120 N. Y. 235, 24 N. E. 315, but that case is very unlike this.

Judgment affirmed, with costs. All concur.