Rensselaer B. Winchell, Appellant, v. Archibald Scott et al., Respondents

Rensselaer B. Winchell, Appellant, v. Archibald Scott et al., Respondents. (Argued June 30, 1889; decided June 28, 1889.) Appeal from judgment of the General Term of the Oourt of Common Pleas in and for the city and county of New York, entered upon an order which affirmed a judgment in favor of defendants, entered upon the report of a referee. This action was brought to recover damages for an alleged breach of a contract between the parties, by which defendants agreed to furnish plaintiff with ice for the term of five years. By the contract plaintiff agreed to pay weekly for the ice delivered, and, in case of default, defendants had the option to declare the contract thereafter forfeited. Plaintiff failed to pay for ice delivered from October 17, 1868, to January 1, 1869. It appeared, and the referee found, that it was defendants’ custom to send bills of ice, delivered weekly and also personally, to demand payment; deliveries were continued up to January 1, 1869. On March 10, 1869, defendants demanded payment and served notice-in writing of their election to annul the contract. Plaintiff offered to pay on condition that a new company, formed by defendants and some others, would assume the contract and continue the deliveries. Held, that, conceding defendants, by continuing to deliver after default, waived the right to declare the contract annulled, and that plaintiff, if he had paid or offered to pay unconditionally the sums in arrears when demanded on March tenth, might have prevented the forfeiture, yet, having failed so to do, he violated the contract, and so was not entitled to recover. B. Doran Killian for appellant. William G. Cooke for respondents. [MAJORITY — Potter J.,] Potter J., reads for affirmance. All concur. Judgment affirmed.