By the Court, Bockes, J.
On a motion for a new trial on a case, where the cause is tried by the court Avithout jury, its decision on questions of fact is to be treated and regarded the same as would be the verdict of a jury, or the report of a referee. (Mann v. Witbeck, 17 Barb. 388. Osborn v. Marquand, 1 Sandf. S. C. R. 457. Oakley v. Aspinwall, 2 Sandf. 7. Gilbert v. Luce, 11 Barb. 91.) The decision on the facts must therefore be conclusive upon the court in bank, unless the preponderance of evidence is so great that the verdict of a jury to the same effect, on the same testimony, would be set aside, or unless there is a total failure of evidence to give the decision Support. A difference of opinion where there is a conflict of evidence is not to be indulged, to affect the verdict of a jury, the report of a referee, or the decision of the court on the facts, in case of trial without jury. (Van Steenburgh v. Hoffman, 15 Barb. 28.) In this case, however, there is no conflict of evidence. The proof is explicit; and the principal question to be considered is whether it establishes a valid agreement between the parties.
•The mode of contracting adopted by the parties in this case is well recognized by law, and possesses great merit by reason of the perspicuity and certainty generally attending it. Perhaps there is no other mode equally convenient, more satisfactory or *61less liable to admit of misapprehension or misconstruction. In the case under consideration the facts are too plain to admit of doubt or mistake. The defendants proposed to the plaintiffs as follows: “We will engage to furnish you a boat load of flour, the last of next week, same quality sent Gilchrist & Mozer, at $>4. 7-6, free to boat.” This proposition, dated and sent on the 30th August, was answered by the plaintiffs immediately, as follows: ' “We will take the beat load flour as per your proposition in yours of the 30th inst.” The proposition was brief and explicit, and its acceptance clear and unqualified. So soon as the letter of acceptance had gone beyond the plaintiffs’ control, the bargain was complete. Nothing remained but to carry it into effect, and it became mutually obligatory upon the parties. (Mactier v. Frith, 6 Wend. 103. Brisban v. Boyd, 4 Paige, 17. Vassar v. Camp, 14 Barb. 341. Story on Con. § 384.)
It is conceded that the proposition fixed the price, kind, quality and quantity of the article, and place of delivery, and it might be added, also, that it fixed the time of delivery, for it did so with sufficient certainty. The offer was accepted without any qualification. The contract was therefore complete, and could not be rescinded by either party without the consent of the other. True, it was silent as to the time and manner of payment, but in such case the law determines that. Payment must be made in such case on delivery, and in legal currency. (Thompson v. Ketcham, 8 John. 189. 2 Kent, 496. Story on Con. § 803. N. Y. Ins. Co. v. De Wolf, 2 Cow. 57, 105, 6. Chapman v. Lathrop, 6 id. 110. Cornwall v. Haight, 8 Barb. 327.) The defendants were bound to deliver the flour, and the plaintiffs to pay for it, each according to the contract. The letter of acceptance contained this inquiry: “ Please say to us how we shall remit 7” and it is contended that this inquiry qualified the acceptance of the defendants’ proposition. The argument is that if the plaintiffs were entitled to an answer to this question, they had a right to accept or reject the answer, whatever it might be. Admit this, and it proves nothing affecting the original proposition and its acceptance. It was *62no more than if the plaintiffs, instead of inquiring how they should remit, had inquired if the defendants would exact gold and silver in lieu of bank bills. In Brisban v. Boyd, (4 Paige, 17,) the letter of acceptance contained a request that the cotton should be designated and marked on joint account, and that information should be given when it was shipped. In that case it was insisted that there were conditions imposed upon the acceptance of the proposition. But the chancellor held that the letter was an unconditional acceptance of the offer to which it was an answer; and that what was said as to designating and marking the cotton and informing them of the time of shipment, was merely directory as to the manner in which they wished the cotton to be sent. The case of Brisban v. Boyd, was much more favorable to the view taken by the defendant’s counsel, than is the one under consideration; for in that case there was some propriety in the suggestion that the designating, marking, and immediate information, requested, entered into and formed part of the contract. But in this case, the utmost force that can be given to the interrogatory is, that the plaintiffs by a reply wished to know whether the defendants would insist upon and exact in regard to payment, strict performance of the agreement; and it may be added, that the defendants’ silence was, in legal effect, an answer that they should.
But the plaintiffs were not legally entitled to any answer to the question. The defendants so understood it, and remained silent. That they so understood it is evident from their subsesequent letters recognizing the agreement as closed and binding.
The decision filed by Justice Allen states “ that the time for the delivery of the said flour was, by the agreement of the parties in writing, on or about the 3d of September, extended for a reasonable time until the 1st of October, 1853,” and that such extension was granted “ at the sole request of the defendants and further “ that the plaintiffs were at all times ready and willing to accept, receive and pay for the flour,” according to the contract.
The contract, as evidenced by the proposition of the 30th *63August, (Tuesday) and its acceptance, the following day, (Wednesday,) specified the time of delivery as “the last of” (the then) “ next week.” On Thursday, the 1st of September, one of the defendants requests the plaintiffs by letter “ to make it,” that is the delivery, “ as late in the week as they conveniently could.” Two days after, and on Saturday the 3d September, the defendants address another letter to the plaintiffs in which they state that they were in the midst of disappointments, and that it would be impossible to get the flour ready as soon as was expected, but added “ it shall be got out just as soon as possible.” The plaintiffs, by letter dated the 5th September, (Monday) acknowledged the receipt of this letter, and inquired when the wheat would be ready for delivery. This was on Monday of the week, the last of which, by the terms of the original agreement, the flour was to be delivered. On Saturday, the 10th of September, and the last day for the delivery, the defendants answer the plaintiffs’ letter, and say that in the beginning of the next week they would be able to inform them when they could deliver the flour. Notwithstanding the plaintiffs addressed to the defendants two letters, one under date of September 20th and the other September 23d, inquiring when the flour would be ready, nothing more was heard from the defendants by letter. But it seems that on the 22d or 23d of September, Stephen Dales saw one of the plaintiffs, and requested them to put off sending for the flour about a week. At the end of this week, September 30th, the plaintiffs were at the place of delivery ready to perform, and on the next day, October 1st, made a demand formally, in writing, for the flour, and offered payment. Dales refused to deliver it, and gave as a reason that “ he did not consider there was a legal contract.” The refusal was not put on the ground that the plaintiffs had failed in any respect to fulfill, but on the ground that there was no legal contract. It has been shown that there was, and the defendants, not having fulfilled it and having refused to perform it, must atone for the injury occasioned by their neglect and refusal. By the letter of the 5th September, the defendants promised to deliver as soon as possible; and by the letter of the 10th they *64promised to inform the plaintiffs when they could deliver, and on the 22d or 23d, Dales did inform them, in substance, by requesting them to put off sending the boat for the flour about one week. To all these delays the plaintiffs acceded. It was well found, therefore, that the time of performance was extended, at the defendants’ request, and with the plaintiffs’ consent, to October 1st. It was competent for the parties by a subsequent contract to agree on such extension. (Frost v. Everett, 5 Cow. 497. Blood v. Goodrich, 9 Wend. 68. Cummings v. Arnold, 3 Metc. 486. Crane v. Maynard, 12 Wend. 408. 1 John. Ch. 22. 7 Cowen, 48.1 id. 249.) Even the time of performance of a sealed instrument may be enlarged by parol. (Esmond v. Van Benschoten, 12 Barb. 366, and cases cited.) But the enlargement of the time of performance of an agreement under seal should be regarded rather as a waiver of strict performance, that is, the parties consent to accept performance at a future day, and when a party procures delay he shall not be allowed to urge it for his own protection. (Young v. Hunter, 2 Seld. 203.) In Keating v. Price, (1 John. Cas. 22,) the action was on a simple contract for the delivery of staves on or before the 1st of May. The defense was that the plaintiff had extended the time for delivering them until the next spring. The extension was held valid, and a nonsuit entered. This case is referred to and approved in Dearborn v. Cross, (7 Cow. 48, 50.) In Erwin v. Saunders, (1 Cow. 249,) it. was held that simple contracts in writing might be varied by a parol enlargement of the time of performance. Nor is a new consideration necessary to give validity to an agreement to extend the time ; the waiver is enough for that purpose. (14 Serg. & Rawle. 241.) The effect of such enlargement is to substitute or adopt the extended time for the time specified in the original contract. It then stands as a new agreement, wherein the mutual promises furnish a good consideration. (Evans v. Thompson, 5 East, 189, 193. Hasbrouck v. Tappen, 15 John. 200, 204.) It is a new agreement substituted for the former one, by which the parties agree in all respects as formerly, except as to the time of performance, which they then fix for a future period. And *65it is under the new substituted agreement that redress must be sought in case either should fail or refuse to perform.
It follows therefore, that on the 1st day of October, the defendants were bound to deliver the flour, and the plaintiffs to pay for it. The plaintiffs were ready at the place, and willing to perform the contract, but the defendants refused; and this brings us to the question of damages.
It has been shown that the defendants were bound to deliver the flour on the 1st day of October, and that they refused to do so. The difference therefore between the contract price and the value of the flour agreed to be delivered on that day, with interest from that period, was the true measure of damages.
It is insisted that the complaint does not state facts sufficient to constitute a cause of action; and the point of objection is, that it does not aver a readiness and willingness to. pay at the plaintiffs’ boat. The authorities and precedents are to the point, that when one agrees to sell and deliver at a particular place, and the other agrees to receive and pay, an averment by the purchaser of a readiness and willingness to receive and pay at that place, in case he sues for a non-delivery, is indispensably necessary to a good complaint. In this case the contract, as stated in each of the five counts, was, to deliver the flour at a particular place, to wit, at the boat, at Jordan, yet neither of the last four counts avers a readiness and willingness to receive and pay at that place. The objection, under the old practice, would have been fatal to those counts if taken by special demurrer. It was suggested that the words “ as aforesaid,” in the first count, following the averment of a readiness and willingness to receive and pay, remedied this defect in that count; but it is doubtful whether those words, as there used, are not totally unmeaning. But it is quite unnecessary to reason or cite authorities on this question, inasmuch as each count, under the practice before the code, would have been held good after verdict. This objection comes up like a motion in arrest of judgment under the former practice. On such motion the verdict was deemed to cure, or supply the defects or imperfections in the statement of the case. (Bayard v. Malcolm, 2 John. *66550, 571. Owens v. Morehouse, 1 id. 276. Leffingwell v. White, 1 John. Cas. 99. Carpenter v. Brown, 6 Barb. 147.) In the last case cited, it was held that the omission to allege a time and place is not an available objection to the declaration, in arrest of judgment or on general demurrer. In Addington v. Allen, (11 Wend. 374,) it was decided in the court of errors on motion in arrest of judgment, “ that the facts which will after verdict be presumed to have been proved, are those which though entirely omitted to be stated in the declaration, are so connected with the facts alleged that the facts alleged cannot be proved without proving those omitted.” This decision covers the case under consideration. A readiness and willingness to perform is averred, and could not be proved, so as to authorize a verdict for the plaintiffs, without also proving a readiness and willingness so to do at the place. Bach count is based on a valid agreement as the same is set forth in the pleading; and a breach by the defendants is well stated ; there is also an averment of performance by the plaintiffs, but it is imperfectly alleged in the particular specified. This statement makes just the case which a verdict is deemed to cure. (Code, § 176.)
Again, by section 176 of the code it is provided that “ the court shall in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
There is some difficulty in applying the facts of this case to either count of the complaint. They best apply to the second and fourth counts. The second count sets up the original agreement, and an extension of the time of its performance one week; and the fourth count sets up an original contract to deliver on the 1st day of October. It is therefore but a question of variance between the facts found, or proof, and the complaint. Nor can it be pretended that the variance has actually misled the defendants to their prejudice, in maintaining their defense on the merits. (Code, § 169.) In Fay v. Grimsteed, (10 Barb. 321,) it was held that a variance between the pleadings and the proof, sufficient to defeat the action or destroy *67the defense, must leave the case unproved in its entire scope and meaning. The questions at issue on the pleadings among others were, as to the extension of performance of the original contract, and also as to the defendants’ duty to deliver on the 1st of October. The defendants were, by the pleadings, apprised of the plaintiffs’ purpose to introduce evidence on those questions, and hence had the opportunity to make preparation for a full defense on the merits to the case as proved on the trial. The variance, therefore, cannot be deemed to affect the substantial rights of the parties.
Notwithstanding the variance between tlfe pleading and the proof is deemed immaterial, an amendment of the complaint is considered admissible and appropriate, for the purpose of securing certainty and harmony in the record* Section 173 of the code contemplates a case like the present. It provides for an amendment of pleadings, as well after as before judgment, by inserting allegations material to the case, or “ by conforming the pleading or proceeding to the facts proved, when the amendment does not change substantially the claim or defense.” (Bate v. Graham, 1 Kernan, 237.) Whether the amendment should be ordered at general term and without formal notice of motion for that purpose, or on notice as a special motion, is a question of practice, not entirely settled. In Gunter v. Catlin, (11 Leg. Obs. 209,) Duer, J., remarked, “We have now indeed a large discretion in amending pleadings, so as to conform them to the facts of the case as disclosed by the evidence, and we have not unfrequcntly exercised this power at a general term, oven where no motion to amend had been made upon the trialby which it may be understood—although it does not necessarily follow from the language—that a formal notice of motion was not required. But see De Peyster v. Wheeler, (1 Sandf. 719, 720.)
In a case like the present, where the amendment is only to conform the pleading to the facts specifically found by the court, and where the record furnishes the only grounds for and against the amendment, a motion is quite unnecessary.
The judgment must be affirmed, with costs, with liberty to *68the plaintiffs to amend the complaint. The amended count should set out the original contract as in the first count, and should aver an extension of the time of performance for a reasonable time, to wit, to and until the 1st day of October, 1853, and a readiness and willingness to receive and pay on that day by the plaintiffs, at the boat, at Jordan.
[Schenectady General Term,
May 7, 1855.
Bockes, C. L. Allen and James, Justices.]