Opinion
June 9, 1922.
Thomas G. Prioleau, for the appellant.
Roderic Wellman, for the respondent.
The Court of Appeals has laid down the law of this case to the effect that the government contracts, beginning with the one of May 11, 1917, took precedence of civilian contracts, and, in so far as they prevented performance of plaintiff's contract, constituted a good defense for the delay or cancellation of it. ( 231 N.Y. 290.) Time was of the essence of the contract between plaintiff and defendant. The defendant contracted to deliver the goods in May, June and July. Whether the government contracts of May eleventh and July twenty-second, taking precedence of plaintiff's contract, caused delay or prevented performance of it in whole or in part, would have been a question of fact on the evidence. But plaintiff waived the time of performance by letters of August 24, October 4 and October 17, 1917. The defendant, therefore, had a reasonable time after October seventeenth to deliver the goods, and such time was never fixed by notice under the doctrine of Taylor v. Goelet ( 208 N.Y. 253), but was left indefinite. Meanwhile still another government contract was made on August twenty-fifth, and the evidence warranted the court in holding as matter of law that performance of plaintiff's contract was then rendered impossible by the government contracts with the effect given them by the National Defense Act (39 U.S. Stat. at Large, 213, § 120) as interpreted by the Court of Appeals.
The judgment should be affirmed, with costs.
BLACKMAR, P.J., RICH, JAYCOX and MANNING, JJ., concur; KELLY, J., votes to reverse on the ground that the letters of the plaintiff did not constitute a waiver of the original date of delivery under Taylor v. Goelet ( 208 N.Y. 253) as matter of law, and also because it was a question of fact whether the war orders prevented the performance of plaintiff's contract.
Judgment affirmed, with costs.