(78 Hun, 348.)

#### LACKAWANNA MILLS v. WEIL et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Action on Contract—When Prematurely Brought.

Where defendants object that goods sold to them by plaintiff are not according to contract, and plaintiff thereupon allows a rebate on the goods delivered, and agrees to alter the portion not delivered, so as to comply with the contract, plaintiff thereby admits that the contract has not been performed, and an action brought before such alterations are made is premature.

Appeal from special term, New York county.

Action by the Lackawanna Mills against Samuel Weil and others for breach of contract. From a judgment entered on a verdict in favor of plaintiff for $934.17, and from an order denying a motion for a new trial, defendants appeal.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

B. F. Einstein, for appellants.

A. A. Spear, for respondent.

PARKER, J.

We think the action was prematurely brought. By it the plaintiff sought to recover damages for an alleged breach of a contract by which the defendants agreed to pay for 60 cases of goods on June 10, 1891, the plaintiff on its part having stipulated to have them ready for - delivery 10 days earlier, or June 1st. Plaintiff notified defendants, prior to June 1st, that the goods were ready for delivery. Defendants did not make full payment on June 10th, but a little later—about June 22d—they ordered the plaintiff to deliver to them some of the goods. Thereafter, and before August 5th, four cases were delivered to them. Defendants insisted that the goods were not in accordance with the contract in several respects, one being that the buttons on the garments delivered only had two holes, whereas it was agreed that they should have four. Plaintiff yielded to defendants’ contention regarding the buttons, and agreed to allow to the defendants, because of the error in such respect, $15 a case for each of the four cases delivered, and to sub*115stitute buttons with four holes in the place of those on the fifty-six cases of goods then in plaintiff's factory. In accordance therewith, the plaintiff, by its representative, sent the defendants a check for $60 inclosed in a letter, of which the following is a copy:

> “New York, August 5, 1891.

> “Messrs. Weil, Haskell & Go., New York—Gentlemen: Inclosed please find check for $60, in settlement of claim a/c of wrong buttons on cases 1,487, 1,480, 1,474, and 1,470, sold by the Lackawanna Mills. The balance of that order shall have buttons as last year, and as per sample from which order was taken. I am,

> “Very truly yours, A. S. Haight.”

Thereafter the plaintiff put buttons with four holes on the remaining garments in place of those then on, but it had not completed the work when this action was brought. Under its contract with the defendants, full performance on its part was to precede payment by the defendants. Its promise to make a deduction on account of the goods already delivered, and to change the buttons on the rest, admitted the contention of the defendants in that respect to be true, and denied to it a right of recovery until after it should so change the goods as to make them comply with the contract. The learned trial judge does not seem to have taken a different view of the law governing this contract than we have expressed, but his charge would seem to indicate that he had in some way been led to believe that the buttons had been changed before the commencement of the action. The evidence is to the contrary. Edward G-. Connor, plaintiff’s superintendent, testified, with reference to a call made upon the plaintiff by a Mr. Lampman, representing the defendants, who presented a letter of introduction from his employers bearing date August 19th, in which they requested for him the courtesy of the plaintiff. The witness said that Lampman called the day following the date of the letter, which would be August 20th. On his cross-examination he testified:

> “Q. When were those buttons changed? A. The girls were working on them at the time that the messenger from Weil, Haskell & Go. was there. Q. When did they finish them? A. Oh, within a day or two after he was there. Q. Do you recollect that? A. Well, I couldn’t say for certain what day they were finished. The Court: He doesn’t ask for certain; he asked within what time. Q. The letter was dated August 19th. It must have reached you about the 20th. Now, I want to know how long after August 20th was it before the buttons were changed. A. Well, not over two days. Q. And then they were all completed? A. Yes, sir; didn’t take only about three days to do the whole thing.”

Lampman testified that he arrived at Scranton, where plaintiff’s mills were situated, early in the evening of the 19th, and called at the mills on the 20th, and had cases of the goods opened for his inspection. Replying to the question whether the buttons had been changed, he answered, “Ea, sir.” This action was commenced on the 19th day of August; necessarily, therefore, several days before the goods were, according to the contract as construed by the parties to it, ready for delivery. The judgment should be reversed, and new trial granted, with costs to the appellant, to abide the event. All concur.