Clark v. Dales. a single dash of the pen, which they did, and closed the acceptance by a period. Having accepted the whole proposition, and nothing else, they then, by way of a new paragraph, go on to state the probable day of the next week when their boat would be at Jordan. The words, "be sure the quality of the flour is uniform and such as you propose to give us, and put up in good packages," are no part of the acceptance, and were never meant or regarded as qualifying either the offer or acceptance, as is manifest from the subsequent acts and conduct of the parties. But even if a part, of the acceptance, it does not affect its absolute character. It was saying simply, let the flour be uniformly of the same quality as that sold to Gilchrist & Mozer, as you have agreed it should be; not some better and some worse. It was merely a request, simply saying fulfill your contract. But the plaintiffs, after the contract was complete, write, "please say to us how we shall remit ;" and it is contended that this shows that the time and manner of payment was still an open question, and hence there was no contract. This is not the correct interpretation, nor the one which the parties have by their conduct put upon it. The plaintiffs by this language did not and could not reserve to themselves any thing. The words, "please say to us how we shall remit," were precisely equivalent to saying "command us as to how we shall remit," we have agreed to pay and expect to pay cash on delivery, but if you prefer a draft on New York or any other mode more convenient to yourselves, you have only to command us, we make the suggestion for your accommodation. The defendants did not choose to change the contract or command us in that respect, and understanding the agreement as they did, the plaintiffs went to Jordan with the money in their hand. But how can the idea of no contract be reconciled with the subsequent conduct of these defendants? See subsequent letters. The defendants, by their letters and interviews, continued to assure the plaintiffs, though in the "midst of disappointments," that the flour should be forthcoming, that the fulfilment of the contract was but a question of time, and thus not only recognized the contract, but induced the plaintiffs to expect this VOL. XX. 8 Clark v. Dales. flour, and not look for a supply in any other quarter. It is too late after this to change their ground and say they were mistaken, there was no contract. They are estopped. (4.) The proof shows the plaintiffs' letter of the 31st of August was sent by return mail. The plaintiffs' boat carried 800 barrels; 800 barrels is an ordinary boat load. The flour sold Gilchrist & Mozer was the "Skaneateles Lake Mill Brand," a well known brand. II. Whether the minds of the parties met, so as to constitute a valid contract, was a question of fact, and the finding of the judge, like the verdict of a jury, is conclusive. (1 Cush. 89. 13 John. 294.) III. The complaint is well drawn, and the facts therein stated constitute a perfect cause of action. In an action for non-delivery of goods sold, it is sufficient to aver that the plaintiffs were always ready and willing to receive and pay at, &c. This the plaintiffs have done. (1 Parsons, 448, 9, and note. 12 John. 209, 211, 212. 12 Wend. 408. 5 John. 179.) The plaintiffs not only averred that they were always ready and willing to receive and pay at the place mentioned, but proved it upon the trial. "An averment that he was always ready, necessarily relates to the time of delivery." The complaint is according to approved precedents. IV. It was not necessary that the complaint should contain an averment that the time was extended, in order to admit evidence that the plaintiffs at the request and upon the application of the defendants, had consented to or acquiesced in an extension of the time of delivery. The object of the evidence was not to show that a new contract had been made, or any stipulations of the contract changed or waived, but to show that the contract as made was kept on foot by the parties. The general rule may be, that an averment of performance will not be sustained by evidence of a legal excuse for non-performance. (7 Barb. 169. 8 id. 327.) But it is submitted, that neither the rule nor the reason of it, applies to a case of mere extension of the time of performance, when the objection comes from the party at whose request and for whose accommodation Clark v. Dales. the extension has been granted. The reason of this rule of pleading in the cases where it applies is, that the excuse of matters constituting it often forms a material issue of which the defendant has a right to be informed by the pleadings. No such reason exists in this case. The complaint is not that the defendants did not deliver the flour by the 10th of September, or did not deliver in time, by which the plaintiffs lost great gains, &c. The real complaint and breach assigned are, that the defendants refused to deliver at any time. We did not get the flour, and thereby lost great gains. This complaint is abundantly sufficient within the case of Crane v. Maynard, (12 Wend. 408.) Besides, as the learned justice who tried the cause, in his opinion remarks, "The defects, if any, are those which have occasioned no surprise to the defendants, nor prevented them from availing themselves of all the grounds which they could interpose." The defense, in whatever aspect it can be viewed, is inequitable, and purely technical, and if necessary, the court will direct the complaint to be amended, or deem it amended, so as to conform it to the facts proved. The power of the court, and the propriety of its exercise in this case, cannot be doubted. (Code, i 173. 1 Kernan, 237, 242.) V. The rule and measure of damages were correctly applied. The plaintiffs, at the repeated and continued request of the defendants, had indulged the latter by consenting to an extension of the time of delivery as long as it was consistent with the plaintiffs' rights. The defendants representing each time, not that there was no "legal contract," and that they were not bound to delivery, but that in consequence of unforeseen obstacles and "disappointments," they could not deliver at the time promised. When, therefore, the plaintiffs, on the 1st day of October, demanded the flour and tendered the price, they were entitled to receive it. Consequently they are entitled by way of damages, to the difference between the contract price and the market value at that time. (2 Sandf. 127. 9 Wend. 129, 135. 24 id. 322.) VI. The objections made to the introduction as evidence of the several letters which passed between the parties subse Clark v. Dales. quent to the making of the contract, are principally upon the ground that they were not admissible under the pleadings, no extension of time being averred, and have been already sufficiently answered. The objection made to the evidence of the witness, George Hopcraft, rests upon no better foundation. An extension of the time for the delivery of articles under a written agreement, is not a waiver of any of its stipulations, but a mere enlargement for the time of its performance, and may be proved by parol. (Chitty on Con. 111. 9 Wend. 68. 15 John. 200. 12 Wend. 408. 4 Barb. 615.) The clear and well-reasoned opinion of Justice Allen covers all the ground presented by this case, and renders an argument by counsel quite unnecessary. By the Court, BOCKES, J. On a motion for a new trial on a case, where the cause is tried by the court without jury, its decision on questions of fact is to be treated and regarded the same as would be the verdict of a jury, or the report of a referee. (Mann v. Witbeck, 17 Barb. 388. Osborn v. Marquand, 1 Sandf. S. C. R. 457. Oakley v. Aspinwall, 2 Sandf. 7. Gilbert v. Luce, 11 Barb. 91.) The decision on the facts must therefore be conclusive upon the court in bank, unless the preponderance of evidence is so great that the verdict of a jury to the same effect, on the same testimony, would be set aside, or unless there is a total failure of evidence to give the decision support. A difference of opinion where there is a conflict of evidence is not to be indulged, to affect the verdict of a jury, the report of a referee, or the decision of the court on the facts, in case of trial without jury. (Van Steenburgh v. Hoffman, 15 Barb. 28.) In this case, however, there is no conflict of evidence. The proof is explicit; and the principal question to be considered is whether it establishes a valid agreement between the parties. The mode of contracting adopted by the parties in this case is well recognized by law, and possesses great merit by reason of the perspicuity and certainty generally attending it. Perhaps there is no other mode equally convenient, more satisfactory or Clark v. Dales. less liable to admit of misapprehension or misconstruction. In the case under consideration the facts are too plain to admit of doubt or mistake. The defendants proposed to the plaintiffs as follows: "We will engage to furnish you a boat load of flour, the last of next week, same quality sent Gilchrist & Mozer, at $4. 7-6, free to boat." This proposition, dated and sent on the 30th August, was answered by the plaintiffs immediately, as follows: "We will take the beat load flour as per your proposition in yours of the 30th inst." The proposition was brief and explicit, and its acceptance clear and unqualified. So soon as the letter of acceptance had gone beyond the plaintiffs' control, the bargain was complete. Nothing remained but to carry it into effect, and it became mutually obligatory upon the parties. (Mactier v. Frith, 6 Wend. 103. Brisban v. Boyd, 4 Paige, 17. Vassar v. Camp, 14 Barb. 341. Story on Con. § 384.) It is conceded that the proposition fixed the price, kind, quality and quantity of the article, and place of delivery, and it might be added, also, that it fixed the time of delivery, for it did so with sufficient certainty. The offer was accepted without any qualification. The contract was therefore complete, and could not be rescinded by either party without the consent of the other. True, it was silent as to the time and manner of payment, but in such case the law determines that. Payment must be made in such case on delivery, and in legal currency. (Thompson v. Ketcham, 8 John. 189. 2 Kent, 496. Story on Con. 803. N. Y. Ins. Co. v. De Wolf, 2 Cow. 57, 105, 6. Chapman v. Lathrop, 6 id. 110. Cornwall v. Haight, 8 Barb. 327.) The defendants were bound to deliver the flour, and the plaintiffs to pay for it, each according to the contract. The letter of acceptance contained this inquiry: "Please say to us how we shall remit?" and it is contended that this inquiry qualified the acceptance of the defendants' proposition. The argument is that if the plaintiffs were entitled to an answer to this question, they had a right to accept or reject the answer, whatever it might be. Admit this, and it proves nothing affecting the original proposition and its acceptance. It was |