| NY | Oct 6, 1876
If, by the contract, the defendant had the whole season in which to deliver the plaster, and was not, under any circumstances, bound to deliver any part of it until the very close, the complaint was properly dismissed for two reasons; first, the refusal to deliver the cargoes of the "Kedron" and "Simpson," which arrived in December, before the close of the season, was not a breach of the defendant's contract, and, second, the failure of the defendant to deliver the plaster at the close of the season, gave no right of action to the plaintiff, unless he was then ready to receive and pay for it. This he was bound to aver and prove, and no proof was given upon the subject. (Porter v. Rose, 12 J.R., 209; Coonley v.Anderson, 1 Hill, 519.) But the jury would have been authorized to find from the evidence that it was a part of the *126 contract that the defendant was to deliver the plaster in New York as fast as vessels could be obtained in Nova Scotia to carry it, and that the right to take the whole season for the delivery was not absolute, but was subject to the limitation mentioned. The proof that the defendant had shipped by the "Kedron" and "Simpson" in December, cargoes of plaster consigned to the defendant in New York, which arrived, was evidence that the defendant could have obtained vessels before the close of the season, and could have delivered on their contract with the plaintiff before that time, an amount of plaster equal to the cargoes of these vessels. The plaintiff on the arrival of the "Kedron," demanded the delivery of the cargo, and was ready to receive and pay for it, but the defendant refused to deliver it, giving no reason for the refusal, and the reason can only be inferred from the fact that plaster had then greatly advanced in price. The like demand was made on the arrival of the "Simpson," and delivery was also refused. It is evident that the parties did not contemplate a delivery of the whole 3,000 tons at one time. The plaintiff was to receive it as vessels arrived, from time to time, and payment was to be made as each cargo was delivered. This is the plain inference from the contract, and is the practical construction put upon it by the parties. We are of opinion that the case should have been submitted to the jury upon the question whether there was a breach of the defendant's contract to deliver the plaster as fast as vessels could be procured to carry it.
If the plaintiff was ready to receive and pay for the cargoes of the "Kedron" and "Simpson," it is no answer to the action that he was not ready to receive and pay for the balance of the plaster remaining undelivered at the end of the season, and if the defendant is entitled to damages for any subsequent breach of the contract by the plaintiff, they may be recovered in an independent action, or they might have been made the subject of a counter-claim. (Tipton v. Feitner,
The judgment should be reversed and a new trial granted.
All concur.
Judgment reversed. *127