The exceptions taken at the trial were ordered by the judge to he heard at the general term in the first instance, and proceedings were stayed in the meantime. The case now comes before the court on these exceptions.
The action is to recover damages for the non-delivery of wood sold by the defendants to the plaintiff under a written contract. The material parts of the contract, affecting the questions raised in the case, are to this effect:
Sherman & Knapp agree to sell to John T. Williams 400 cords of white pine wood to be delivered on or about the first *410of May, 1863. Williams agrees to pay for 200 cords at the rate óf $5.25 per cord ; the other 200 cords at $5 per cord, cash on delivery ; the wood to be delivered on or before the first of November, 1863. This contract was signed by the parties, and bears date November 29, 1862. No question was made about the place of delivery, although" none was named in the contract. About 155 cords were delivered under this contract, and payments were made therefor to the amount of $788.
The delivery of wood and the payments were made between August 1 and September 1, 1863. The deliveries made were in' three nearly equal parcels, from vessels at the wharf in New York city.
The judge held that the defendants undertook to deliver 200 cords about May 1, 1863, to be paid for when that amount should be so delivered, at $5.25 per cord, and the other 200 cords were to be delivered about November 1, to be paid for when it was all delivered.
The defendants’ counsel requested the judge to charge “ that the plaintiff having on the reception of each cargo undertaken to pay the money, and the complaint alleging that the plaintiff paid according to the contract, the plaintiff cannot now say that he was not bound to pay for any wood until 200 cords were delivered.”
The judge also held that the delivery of wood was too late to be applied on account of the 200 cords which the defendants agreed to deliver on or about the first of May, but he left it to the jury to say whether the delivery was in season for that purpose, and if not, that the defendants were entitled to be allowed for the wood delivered only at the rate of five dollars per cord. He also held that it was obligatory on the* defendants to deliver the whole quantity of 200 cords, on or about May first, before they could demand pay for any part of it.
The defendants excepted to these rulings of the judge, and the questions so raised were argued at the general term.
*411The contract appears to be for the delivery of, and payment for, 400 cords of wood as an entirety. Half the quantity was to be paid for at the higher, and half at the lower price. The defendants agreed to deliver it all on or about May 1st; but the other clause in relation to the delivery qualifies the former, and extends the time to the first of November. The contract is to the effect that the defendants will deliver on or about May 1st, and no part of the delivery shall be later than the first of November. The payment is to be “cash on delivery.” The agreement is not for payment as the wood is delivered, but requires the full performance of the delivery agreed on, before payment can be demanded. The contract gave the defendants the whole season, from May 1st to November 1st, to deliver the wood, and if it was delivered within that time, the plaintiff was bound to accept and pay for it.
The defendants resided in Ulster county: the deliveries were by cargo from that county to the plaintiff at New York. The action of the parties indicates that the wood was expected to be delivered through the season of navigation. If any had been delivered within a reasonable time before the first of May, the plaintiff was required by his contract to pay for it. I am unable to perceive that it was the one half or the other, that was to be paid for at the greatest price. The prices named covered the whole quantity.
The direction that the defendants were only entitled to payment after the delivery of 200 cords, was not unfavorable to the defendants, inasmxich as they were not entitled to any payment till after the delivery of the whole 400 cords. Then the full price of $5.25 for half and $5 for the other half, per cord, was due, in case it was all delivered before November 1st, 1863.
The plaintiff committed no breach of his contract by refusing to pay any more than $5 per cord, because the defendants were not in a condition to demand any thing. Nor can this refusal be considered, as the defendants insist, a refusal *412to take any wood and pay for any part at the higher rate named in the contract.
[New York General Term, April 1, 1867.The judge was in error in holding that the delivery of 155 cords was too late to be applied on account of the 200 cords which was to have been delivered on. or about May 1st, and also in leaving it to the jury to say whether the delivery was in season, and if not, that the defendants were entitled to be allowed only at the rate of five dollars per cord. The plaintiff accepted the 155 cords as a delivery under the contract, and in estimating .the damages the jury should have been instructed to allow the defendants for one half of the wood at the larger price, and the remainder at the other price. This error may have affected the amount of damages, and the defendants are for that reason entitled to a new trial, with costs to abide the event.
Leonard, Ingraham and Sutherland, Justices.]