Paige v. Ott

By the Court, Whittlesey, J.

The plaintiff agreed to furnish and deliver to the defendant certain descriptions of lumber, at specified prices, to be delivered on or before a certain day, and payment was to be made when it was all delivered and accepted. He had delivered a considerable portion of the lumber before the day fixed for the delivery by the contract ; but as he had not delivered it all by that day, it is clear that he could not under the contract recover even for what he had delivered, as the contract is an entire thing, and the delivery of the whole of the lumber by the day was a condition precedent to the right to the payment for any part.

The plaintiff claims that he was relieved from the consequences resulting from the want of a strict performance of this agreement by a subsequent parol agreement, by which the defendant stipulated that if he would furnish a certain bill of oak timber by the following spring, he would be satisfied in regard to the first agreement. Conceding that it was competent to modify the original sealed agreement by a new agreement by parol, and that such new agreement was fully proved, it only modified the first agreement by extending the time for the delivery of the lumber, and altering the bill of specific lumber to be delivered. The prices under the former agreement were to govern, and the provision in the old agreement that payment was to be made when all the lumber was delivered, was also *408 retained. Under this new agreement some lumber was delivered, but the whole of the oak lumber required by this agreement was not delivered. A number of pieces of elm were substituted by the plaintiff in place of the oak, which the defendant did not receive, and thus this new agreement has never been fulfilled on the part of the plaintiff. The defendant has received quantities of lumber under both agreements; the time for the delivery under each has elapsed, the plaintiff has not fulfilled the contract on his part by delivering all the lumber even under the new agreement, and the question presents itself whether he is entitled to payment for the lumber actually delivered. There is a class of cases in our courts which are analogous to this, relating to contracts for labor, which hold that if one contracts to labor for another for a given period of time, he cannot recover for a portion of the time, the contract being an -entire thing, and that the performance of the service for the whole term is a condition precedent to a right to payment for any part. (McMillan v. Vanderlip, 12 John. 165 ; Jennings v. Camp, 13 id. 94; Reab v. Moor, 19 id. 337; Lantry v. Parks, 8 Cowen, 63; Stephens v. Beard, 4 Wend. 604 ; Sickels v. Pattison, 14 Wend. 257 .) The same principle is held applicable to contracts for the delivery of a specific quantity of any article of merchandise, at a given day, to be paid for when the whole is delivered. If a part only is delivered, the vendor cannot recover for the portion delivered, unless the delivery of the residue was prevented by the vendee. (Champlin v. Rowley, 13 Wend. 258 , affirmed in error, 18 id. 187; Ketchum v. Evertson, 13 John. 359 ; Mead v. Degolyer, 16 Wend. 632 .) I consider the two cases of Champlin v. Rowley and Mead v. Degolyer , one of which was the adjudication of the court of dernier resort, as conclusive upon the question presented by the case now before us. The current of decisions in our own courts has been uniform. There are some English decisions the other way, particularly Oxen-dale v. Wetherell, (9 Barn. & Cress. 386;) but they are commented upon in the cases in our own courts above referred to, and their doctrine repudiated.

*409 Under the doctrine of these cases, the plaintiff clearly could not recover under the first agreement. That was only departed from on condition that the plaintiff should furnish a certain bill of oak timber within a certain other specified time. He did not do this. Instead of oak timber a part of the lumber he furnished was elm, which the defendant did not accept, and unless he furnished the entire lumber according to the bill and by the time mentioned in the new agreement, he is not entitled to recover even for that which he has delivered. In my judgment the report of the referees should be set aside.

Motion granted.