William R. Newbery et al, Appellants, v. Samuel Furnival et al., Respondents

William R. Newbery et al, Appellants, v. Samuel Furnival et al., Respondents. (Argued March 26,1874; decided April 4, 1874.) This action was brought to recover damages for the alleged breach of a contract for the sale, by plaintiffs to defendants, of 431 bales of jute, to “ arrive from London, per ship Robena.” The contract was made for plaintiffs by their agent, Sturgess. But 343 bales of the jute arrived upon the Robena, the balance having been shipped by another vessel, which did not arrive until a month after the Robena. Shortly after the arrival of the Bohena, and the unlading of the jute, defendants examined it and determined not to accept it, on the ground that the quality was inferior to that called for by the contract, and they notified Sturgess of that determination. . The referee found that the quality conformed to the contract. One of the plaintiffs testified, and the referee found that Sturgess was only agent for the sale, not for the delivery of the jute. The evidence also tended to show, and the referee found, that at this time they did not know but that the entire quantity had arrived by the Bohena. Held, that to entitle plaintiffs to recover it was necessary for them to show ability and willingness to perform the entire contract, and an offer so to do, or a waiver of such performance ; that the evidence showed an inability to perform, and failed to show a waiver, as what was said by defendants to Sturgess after he had ceased to be agent for plaintiffs, had no effect upon the rights and duties of the latter, and as defendants could not be held to have waived a point of which they were ignorant. Sturgess was called as a witness by plaintiffs; on his cross-examination by defendants’ counsel, he testified that he told one of the defendants that plaintiffs could not deliver all the jute. This defendant was permitted to testify, under objection, that Sturgess did not tell him so. Held, no error, that it was important for defendants, in answer to the position that by their refusal to accept upon another ground they had waived an entire performance, to show that they did not know of this inability, and so were not bound by the testimony of Sturgess, although given on cross-examination, but had a right to show the fact to be. different from what he testified to. George W. Miller for the appellants. E. J. Spink for the respondents. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.