Henry Harteau et al., Appellants, v. John M. Gardner, Respondent

Henry Harteau et al., Appellants, v. John M. Gardner, Respondent. (Argued January 16, 1873; decided March term, 1873.) This action was brought.to recover for an alleged breach of contract for the sale and delivery of a quantity of brick. The defence, that the agreement was void under the statute of frauds. The contract was by parol for the sale and delivery, at Brooklyn, of five cargoes of brick, at ten dollars per thousand. Plaintiff was to provide a suitable place for prompt delivery. Defendant sent a cargo which arrived at Brooklyn July 13, 1866. On the morning of the fourteenth, before any were delivered, defendant caused a written notice, directed to plaintiff Harteau, to be delivered, to the person who was giving directions as to where the brick should be unloaded. The notice was to the effect that if the plaintiffs did not discharge the brick on the fourteenth the agreement would be considered broken, and defendant would not send another cargo. This notice was not received by Harteau until after a portion of the brick had been delivered. Only a portion of the brick were discharged on the fourteenth; and the next day defendant withdrew his vessel and the residue of the cargo, and refused to deliver any more. Held, that the partial delivery validated the contract, and that the notice, not having been received by plaintiffs until after the delivery was commenced, it did not modify or affect the contract or qualify the delivery; and that, therefore, a non-compliance by plaintiffs with the terms of the notice was no defence. John D. Pray for the appellants. C. P Hoffman for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for reversal. All concur; Lott, Ch. 0., not sitting. Judgment reversed and new trial granted.