140 N.E. 931 | NY | 1923
We have here presented squarely the question whether under an executory contract for the purchase and sale of goods, delivery to be made within a reasonable time, the vendee after waiting for what in fact is such a time, may rescind the contract because of non-delivery, or whether he must make a demand for *394 delivery before a reasonable date thereafter fixed by him and may only rescind if this demand is not complied with.
The general rule as to rescission of executory contracts is well understood. One party may not avail himself of this remedy because of a slight breach but only for one substantial and essential. (Fossume v. Requa,
In Taylor v. Goelet (
But we did go further in Taylor v. Goelet than the particular case required. Speaking generally of all executory contracts we said there could be no rescission for delay unless time was the essence of the contract. If the agreement explicitly or impliedly was for performance within a reasonable time it never is of the essence. It can only be made so by subsequent notice. In any event the statement is too broad. It does not apply to cases requiring the delivery of articles of speculative and fluctuating value. We have held it does not apply to contracts relating to cable transfers of exchange. Nor does it apply to ordinary contracts of sale where there is no waiver — nothing to induce a party to proceed in the belief that he is not to be held strictly to the time stated.
This is the meaning of Mawhinney v. Millbrook Woolen Mills
(
Where by a contract to sell the seller is bound to deliver the goods to the buyer but no time for delivery is fixed, the seller must tender them within a reasonable time. (Personal Property Law [Cons. Laws, ch. 41], § 124.) Under this statute the contract such as the one in the case before us does provide for delivery at a future time just as effectually as if that future time was fixed by date. The duty of the seller is absolute. He has not been deceived by any action of the buyer or led to believe that strict *396
compliance with the contract is not to be insisted upon. The provision as to the delivery within a reasonable time is a condition. It may be waived, and if waived it may not again be imposed without notice. If not waived, however, the buyer may refuse to proceed with the contract. (Pope v. Terre Haute Car Mfg. Co.,
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN and CRANE, JJ., concur; CARDOZO, J., concurs in result.
Judgment reversed, etc.