The plaintiff’s action is brought upon the following contract:
*700“ The John F. Trainor Company “ Commission Merchants “ Cotton Yarns
“ 291 Broadway New York
“ No. 1733 “ Order 9758
“ G. Amsinck & Company, "Req
“ 90 Wall Street, New York City:
“ Gentlemen.— We enter your order as follows:
“ Quantity 29000 pounds
“ Description 8 /!' soft twist
54" 2½ to 3 oz. skeins MARK: C. I. D. B. A.
Buenos Aires No. 1/Up 65fi lb.
3% 10 days from B /L F. O. B. mill. Frt. prepaid.
Deliveries Beginning September, sooner if possible.
This delivery is subject to delays over which we have no control.
“ Price “ Terms
“ Shipping
instructions Caledonian Dye Works, Philadelphia, Pa.
“ IE ANY CORRECTIONS NOTIFY US PROMPTLY.
“ This order is taken subject to discontinuance or cancellation only in case of fires, strikes, lockouts, or any unforeseen casualty at your mill or that of our mill where the yarns are to be made, and in that event deliveries to be made proportionate to the running of the respective mills, you to take and we to deliver all goods made at that time or in process of manufacture.
“If shipments are delayed for any reason, it is understood that the order remains in force until cancelled. All understandings and verbal agreements embodied herein.
“ Thanking you for the order, we are,
“ Yours very truly,
“THE JOHN F. TRAINOR COMPANY
“ By John F. Trainor
“ New York, N. Y., June 3, 1918. Pres.
“ PLEASE ACKNOWLEDGE ON ENCLOSED POSTAL.”
*701Thereafter on June 10, 1918, defendant acknowledged and ratified said contract as follows:
“ John F. Trainor Co.,
“ New York City, N. Y.:
“ Dear Sirs.— We hereby acknowledge order No. 1733 with you for 29000 pounds 8 /I soft twist 54" 2% to 3 oz. skeins, and same is in accordance with our understanding.
“ Yours truly,
“ G. AMSINCK & CO., INC.,
“ 6 /10 /18 Per A. W.”
The plaintiff was a corporation engaged in the commission business in buying and selling cotton yarns. Prior to September first, when deliveries were to be begun, the plaintiff, having been unable to obtain those yarns, had further negotiations with the defendant, wherein it was agreed that the plaintiff should have a reasonable time after September first for the delivery of the yarns. In the complaint originally framed it was alleged that this contract was modified to provide for deliveries in December or early in January. Upon the trial this allegation was amended so as to recite as the supplemental agreement that the plaintiff should have a reasonable time after September first to make deliveries. While the original contract has in it a reference to “ our mill,” the evidence shows that this reference was simply to mills from which the plaintiff had been accustomed to get its yarns, and there can be no claim under the contract, even if the question should be material, that the plaintiff was to manufacture this yarn. It will be noticed that the deliveries first contemplated were to be made during the continuance of the war, which was then pending and in which we were engaged. Upon the signing of the contract, the plaintiff made inquiries at different mills to ascertain where it could procure the yarns required to be delivered under the contract. It was ascertained at that time that these mills were all engaged in government work, and that the plaintiff would be unable to procure the yarns within the times specified in the contract for their deliveries, which fact resulted in the making of a supplemental agreement made before the contract had been broken and before the 1st of September in 1918. The armistice took effect the eleventh *702day of November. Upon the testimony of the plaintiff’s president he ascertained that these yarns could be obtained the first week in November, even before the armistice took effect. The trial court submitted to the jury the single question as to whether a reasonable time had elapsed since the making of the supplemental contract before November thirtieth, when notice of cancellation of the contract was served by the defendant upon the plaintiff, charging the jury that, if prior to said date a reasonable time had elapsed, the plaintiff could not recover, because of the failure of the plaintiff to make deliveries within such reasonable time; and, on the other hand, if a reasonable time had not elapsed prior to the thirtieth of November, the defendant was not authorized to give notice of cancellation, and that the plaintiff might recover the difference between the contract price and the market price of the yarn upon said thirtieth of November. The jury found for the defendant, holding in effect that a reasonable time had elapsed prior to the notice of cancellation which authorized the giving of such notice and which terminated the contract.
The provisions of the contract originally made are not clear. It was provided therein that the contract could not be discontinued or canceled except for certain specified reasons, as strikes, lockouts or any unforeseen casualty at the mills. That this was not intended, however, to be as comprehensive as is stated therein, is indicated by what follows: That “ if shipments are delayed for any reason, it is understood that the order remains in force until cancelled.” This subsequent provision contemplates a cancellation for causes other than fires, strikes, lockouts, as specified in the preceding clause in the contract. Furthermore, the provision in the contract that if deliveries are delayed the contract should be deemed to continue until cancellation, should, I think, be fairly construed that the contract should continue until notice by the defendant of its election to cancel the same. It clearly cannot be contemplated to require a cancellation by consent of both parties, which interpretation would put either party at the mercy of the other. Nor do I conceive it could be construed that the notice of cancellation is any other than a notice that the party is willing to proceed no further under the contract. If it *703had been intended by this clause in the contract to provide for a notice fixing a definite time in the future when deliveries must be made, and to provide that, in case of failure to make such deliveries, the contract should be deemed canceled, I think the provisions of the contract would have been otherwise framed with such notice specifically provided for. Under the modified contract as alleged in the amended complaint, it may well be questioned whether these provisions in the original contract were not intended to be abrogated, and such seems to have been the attitude of the counsel upon the trial of the action, as no specific claim was there made under either of said provisions, although the defendant did move to dismiss the complaint. The burden of the plaintiff’s contention seems to have been that a reasonable time had not elapsed since the modified contract was made by reason of the government restrictions. The plaintiff, however, claims the benefit of these provisions in its brief in this court, and I will assume for the argument that this modified contract is subject thereto. The notice of the election of the defendant to consider the contract at an end, or to cancel the same, was duly served, as is admitted in the complaint, and the ultimate question, as I view it, involves the obligations attaching to an ordinary contract to deliver within a reasonable time. The contention of the defendant is that the plaintiff, in order to recover, must show a tender within a reasonable time from the making of the modified contract. The plaintiff’s contention, however, is that under such a contract a party can only cancel the contract after having made the time definite by notice, after which, in default of delivery, the contract will have been deemed to have been abrogated.
In Pope v. Terre Haute Car & Mfg. Co. (107 N. Y. 61) the construction of such a contract is thus stated: “ Where an executory contract for the sale of goods contains no provision as to the time when delivery is to be made by the vendor, its legal effect is an agreement to deliver within a reasonable time, and in an action brought by him against the purchaser for failure of the latter to perform, where by the terms of the contract payment is to be made upon delivery, plaintiff must allege in his complaint and prove upon the trial, performance or offer to perform on his part within a reasonable time.
*704“ Where the complaint in such an action omitted to allege a tender of the goods in a reasonable time, and upon motion to dismiss the complaint because of the omission, plaintiffs did not offer to amend, and no amendment was made at any stage of the trial, or proof given showing that the tender was in a reasonable time, Held, that the denial of the motion was error, requiring a reversal.”
In Eppens, Smith & Wiemann Co. v. Littlejohn (164 N. Y. 187) the rule is thus stated: “ Where a contract for the sale of goods to be shipped from a foreign port fixes no time for the shipment, it must be made in a reasonable time, and that depends upon the circumstances of the particular case, such at least as the parties may be supposed to have contemplated in a general way in making the contract, and the burden is upon the seller to show compliance in that particular in an action to recover damages for the buyer’s refusal to accept and pay for the goods.”
These cases have never been criticised or their authority questioned, and stand, as-I view it, as the law of this State to-day, except in a case where there has been a part performance on the part of a party whose obligation was to perform within a reasonable time, in a case where the cancellation of the contract by the other party would involve a forfeiture of moneys expended in such part performance. Such is the case of Taylor v. Goelet (208 N. Y. 253), mainly relied upon by the appellant in this case. In that case there was a building contract which had been partly performed and moneys expended, and it was there held that a rescission would result in a forfeiture on behalf of the contractor, and that in that case the owner was required to give notice to the contractor to complete within a certain time, so as to make specific the date upon which he would claim default if the building were not completed. In that case there was an affirmance by the Court of Appeals of the decision by this court in which the opinion was written by Mr. Justice Miller. The opinions, both in the Court of Appeals and in this court, must under well-settled rules of interpretation be read in connection with the facts presented by the cases decided. The rule as laid down in the Pope case and in the Eppens, Smith & Wiemann Case (supra) was not there questioned, .and the Taylor ease thus *705cited should be deemed to apply simply to cases involving a forfeiture of moneys expended upon the rescission by the other party. The principle of this distinction is analogous to the principle upon which rescission itself is allowed by one party as against another only where the parties may be put in statu quo. This distinction is pointed out in an able opinion by Mr. Justice Lehman, writing for the Appellate Term in the case of Chemung Iron & Steel Co. v. Horn (114 Misc. Rep. 380). In the case at bar it does not appear that any of this yarn had been purchased by the plaintiff. No moneys had been expended upon the contract which would be forfeited in case of a rescission which the law allows for non-compliance with the terms of the contract. There is no provision of the statute which requires a party to make definite the time for performance under a contract to perform within a reasonable time, and the court should not, in my judgment, imply this additional provision in the contract, except to prevent a forfeiture. This construction recognizes the force of the decision in the Pope case and in the Eppens, Smith & Wiemann Case (supra), and upon the principle of ratione cessante cessat lex would make inapplicable cases similar to the Taylor case, where this provision is implied in the contract for the purpose of saving a forfeiture after the lapse of a reasonable time within which to perform the contract. The contract is at an end. No rescission is there necessary, as is clearly pointed out in the opinion in the Chemung Iron & Steel Co. Case (supra) and the plaintiff is required under well-settled rules of law to assume the burden of proving, before it can recover, that the terms of the contract were fully performed upon its part, and, in a contract requiring performance within a reasonable time, that a tender of delivery within a reasonable time was made.
The case of Pierson & Co. v. American Steel Export Co. (194 App. Div. 555) was the case of an anticipatory breach of a contract which would excuse the plaintiff from proving a tender within the terms of the contract. It would appear in that case, however, from the letters of September 4,1917, and September 5, 1917, as noted in the opinion, that part of the work has been already begun, and the defendant was requested to *706“ suspend manufacture of the material on this order until further advised.” This would bring the case clearly within the authority of the Taylor case involving a forfeiture of the value of the work performed by the plaintiff towards the consummation of the contract. The decision also was put upon another ground, and that is that the notice of cancellation stated a specific ground for cancellation which was held not to be good. The case, therefore, is clearly distinguishable from the case before us, which was not a case for the manufacture of goods, but a contract wherein the plaintiff was required to purchase the goods for the purpose of consummating its sale to the defendant, and no purchase whatever had been made, and no act done in the performance of that contract, and, therefore, no forfeiture would be involved. In such case the plaintiff, having alleged the cancellation required by the contract, as I construe it, was required to show a tender of delivery within a reasonable time. The court will not import into a contract terms additional to those stipulated by the parties themselves, at least unless necessary to prevent a forfeiture, and no such necessity exists in the case at bar.
No question is made in the brief of the appellant that the verdict is against the weight of evidence. With the evidence of the plaintiff’s president that he ascertained that this yarn could be purchased in the first week in November, after the long delay which had already existed, there was sufficient evidence to authorize the jury to find that upon November thirtieth, when notice of cancellation was given by the defendant, a reasonable time for the plaintiff to perform its contract had already expired, which authorized the giving of the notice of cancellation.
The judgment and order should, therefore, be affirmed, with costs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.