The contract between the defendant and Duryea, Watts & Co. constituted.a binding agreement for the sale and delivery of the flour ordered by the defendant of the firm in April and October, 1892. (Stanton v. Small, 3 Sandf. 230 ; Benjamin on Sales [Bennett’s ed.], 86.) The referee found that’, in the usual course of business between the said firm and the defendant, the firm would book the order of the defendant, and, as the defendant requested, would order from the mill, of which the 'firm were agents, the required quantity of flour, which would be shipped directly from the mill to the defendant. The firm owned no flour, except as they purchased of the mill, to fill the orders which they received from customers. This condition was known to the defendant, as well as was the whole course of *152. dealing. The defendant, used about 600 barrels of flour monthly in . his business, and while no-specific time was agreed, ujion when- the flour should be- delivered, in pursuance of the order given by the defendant, yet,, in the usual course of business, it Would be within one or two months after the order- was booked. It is not disputed but that, during the whole time after the defendant gave the order for the flour in April and October, 1892, while- the firm,, remained the agents of the mill, the firm was at all times -in a position where it could order out from the mill the flour required to fill the' defen dantVorder, upon the -defendant’s request therefor. This condition continued to exist up to March, 1893, after the orders were-given.
. The-referee finds that of the April purchase 315 barrels were delivered upon request of the defendant, and of the October purchase, in like manner, 450 barrels -were delivered. It is also established by the proof that, at this time, the firm was able, ready and willing to deliver the-whole amount of flour called for by the order, but that, .upon request of the defendant, delivery of. the whole number of barrels was not then made. It also appears, and the referee found, that the firm often .thereafter requested the defendant to order out the Horn-' remaining of these"orders, but that the defendant did not do so. Tlie proof is abundant, and without contrádic-" tion, to show that the firm.was calling upon the defendant to take the flour in accordance" with his contract; that the defendant recognized his obligation to take the flour, but- -neglected and refused compliance with the demand of the firm - to order it out. It-is also established that it was within the power of the firm- to obtain the flour from the "mill during all this time. The only reason why it was not so ordered out was that defendant did not request it in pur-. suanee of the terms -of his contract. The referee placed his decision in dismissing .the complaint upon three grounds:
First. That no sufficient tender of the undelivered flour was-ever made by the firm- to place the defendant in default under his contract ; and, Second, that the omission of the defendant to order, out • the flour w-as not a waiver of the tender, whereby a tender was rendered unnecessary. Third. “ That the failure -of the company to -designate or set apart-any. specified-lot of flour as being that which ■ should have been taken by defendant under-his contract is a bar to recovery.” . ■ ' .
*153So far as the conclusion of law found by the referee upon the subject of tender by the defendant is concerned, the facts upon which it is based are undisputed. It is without dispute that lie did not order out the flour in accordance with the terms of his contract, that he requested a delay in delivery, and that he refused to order out the flour upon demand so to do. The effect of this attitude in this respect, therefore, becomes a question of law. In Nelson v. Plimpton Fire Proof E. Co. (55 N. Y. 480) it was said by Judge Allen: “ An actual tender of performance may be excused when there is a willingness and an ability to perform, and actual performance has been prevented or expressly waived by the parties to whom performance is due.” In that case the contract required the plaintiff to furnish for elevation and storage in the defendant’s elevator 500,000 bushels of grain, which the defendant agreed to receive, elevate and store for a specific sum. The breach alleged was" that the defendant refused to receive and store the grain under the contract. The plaintiff was defeated, upon the ground that the complaint failed to aver that the plaintiff or any other person had grain for delivery to the defendant, to be elevated and stored, or that the plaintiff was ready or willing or could have furnished or delivered grain to the defendant under the contract; and the proof upon the trial did not cure the defect in the complaint. It is quite evident from the discussion in that case that if it had appeared that the plaintiff had the grain, or could have furnished the grain to be delivered under the contract, so far as that question is concerned, it would have constituted a breach of the contract, even though no actual manual tender of the grain had been made.
In the present case the complaint alleges the purchase, the delivery of the flour thereunder, the offer to deliver the flour undelivered under the order, and the refusal of the defendant to accept and receive the same. And the proof upon the trial established the firm’s ability at any time to deliver the flour in accordance with the terms of the order, and also the defendant’s refusal to authorize it. Under the authority of the above case, therefore, no other tender was necessary, as the failure to deliver was produced by the defendant’s refusal to receive, which amounts in law to an. excuse of tender even though there be no express waiver. (Ogden v. Marshall, *1548 N. Y. 340 ; Lawrence v. Miller, 86 id. 131; Eddy v. Davis, 116 id. 247; Hunter v. Wetsell, 84 id. 549; Tiffany on Sales, 179, and cases cited.) Under the facts of this case,, therefore, tender of the flour was not an essential requisite to the maintenance- of the action, as the defendant by his act prevented its being done; and lie- is, therefore, alone responsible for the failure.
This brings Us to a consideration of the remaining question in the. case. Was it necessary that the tirin' should have had in, their possession the flour which the defendant was entitled to receive % Wé have seen that they were able to obtain it, the means they had of. doing so, and that the defendant was familiar with the course of business by which they obtained it. It is laid down by Mr. Benjamin, in his work on Sales, that where there has been a breach of an •executory contract of sale, “if the postponement has taken place at 'the buyer’s request, he is estopped from denying that the seller was ready and willing to deliver within the contract time.” ' (Benjamin on Sales [Bennett’s ed.], 664.) This doctrine is supported by the authority of the English, cases. (Hickman v. Haynes, L. R. [10 C. P.] 598; Ogle v. Ecvrl Vane, 3 Q. B. 272.) We think that its doctrine is in, all respects applicable to this case. At the time when the defendant should have taken the flour, the firm was. able and ready to deliver it; that it was not then delivered was the fault of the defendant. .As he prevented the delivery in accordance with the terms of the contract, we think that it is a salutary rule which holds him estopped from asserting that the firm did not go through all the technical forms of law in' order to put him in default. In order to permit the defendant now to assert that the firm was not ready. to perform, when his own' act prevented it, would permit his- own breach of contract to constitute a defense and he would profit by his own' wrong. The plaintiff, as assignee- of the ■ claim, properly brings the action.
The judgment should be reversed and a new trial granted before another referee,, costs to abide the- event.
• ■ All concurred..
Judgment reversed and new trial granted before a new referee to be appointed at Special Term, costs to abide the event.