I think the contract between the parties was legal and enforcible. The defendant bound itself to deliver automobiles at the times and under the terms and conditions specified in the contract. It was hot, therefore, unilateral. The clause therein to the effect that the defendant should not be liable for failure of performance when such failure was due to “fire, strikes, accidents, or any other cause whatsoever ’’ was before the court for'its consideration in Meade v. Poppenberg (167 App. Div. 411), where it was held that such clause did not mean that the defendant could arbitrarily refuse to deliver but was only intended to cover those cases where delivery was put beyond its power by causes over which it had no control.
This contract the plaintiff broke. He wrote to the defendant that he would be unable to take the cars in accordance with the terms of the contract and desired to have the date of delivery advanced to a time when he thought there would be a possible market for them. The defendant made no response to this arbitrary declaration of purpose and was under no obligation to do so. The letter of the plaintiff did not ask for a response nor seem to contemplate one. The defendant offered to make delivery of the cars which offer was declined. The plaintiff not having taken the cars as he agreed is not by the express provisions of the contract entitled to recover the money he deposited with the defendant.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.