Plaintiffs, in their complaint, allege that defendants contracted for a “ delivery to be made by September 25th,” and that plaintiffs “ upon the 25th day of September * * * tendered * * * delivery.” In substance plaintiffs allege performance on their part. The only evidence as to delivery, is that of the witness McMahon — called by the plaintiffs — who testifies that he offered the goods on the twenty-fifth of .September, and that the offer was made after Dewey Day, the twenty-ninth. The evidence of the witness O'adwalader is not as to delivery, but merely as to sending the goods out for delivery. The case should not have been submitted to the jury upon the evidence as to delivery on the twenty-fifth, as a finding that there was a delivery on the twenty-fifth was not warranted by the evidence, there was no preponderance of evidence that way
The case should not have been submitted to the jury upon the theory of a waiver of performance as to time, as no waiver had been pleaded. If an amendment conforming the pleadings to the proof were otherwise proper it should not now be made in view of the fact that a motion to dismiss was made at the close of the evidence. The question asked by the counsel for the.defendants after the denial of his motion was, in our opinion an inquiry for information and in no sense a request or acquiescence.
The judgments and orders are reversed and a new trial is ordered, with costs to the appellants to abide the event.
Present: Truax, P. J., Scott and Dugkro, JJ.
Judgments and orders reversed and new trial ordered, with costs to appellants to abide event.