The controversy between the parties to this appeal springs out of a contract whereby the plaintiff, who was doing business at Penn Yan, sold, and agreed during the month of November, 1902, to deliver, to the defendants, who were doing business in the city of New York, ten cars of buckwheat flour, to be paid for upon arrival in New York. Only three of said cars were delivered within the time mentioned, the other seven being shipped six during the month of December and one during the month of *258January following. The defendants accepted and paid for the cars shipped during the month of November, but with the exception of one, which they paid for through inadvertence, believing that it was shipped during the month of November, they refused to receive and pay for the cars shipped after the time specified. After such refusal, plaintiff sold .said cars not paid for by defendants, and brought this action seeking to charge the latter with the difference between the prices realized upon such sale and those agreed to be paid. The learned trial justice before whom the case was tried allowed the plaintiff upon the trial to amend his complaint by alleging, in substance, that the contract between the parties was so modified as to allow the shipment and delivery of the flour to be delayed until and continued through the months of December and January, and then found in favor of plaintiff for the damages accruing upon his theory with reference to the five cars shipped during December.
We think that the decision thus reached was erroneous, and that the judgment founded thereon must be reversed. The conclusion reached at the trial upon this question of extension is embodied in a finding' to the effect “that after the making of such contract, and before the time limited for the performance thereof had expired, negotiations were had between the plaintiff and defendants for an extension of the time for the delivery of such flour, and the time for such delivery was extended, and the provision of Said contract requiring delivery in the month of November was waived by the defendants, and permission given by said defendants to string the delivery of said cars not shipped in the month of November along through the month of December.” We are unable to find any evidence which sustains this finding that before the expiration of the time fixed for the delivery of the flour the contract was modified and the time of delivery extended so as to include the month of December. The contract of sale between the parties was negotiated by a broker in New York, named Bowlin. Soon after it was made, plaintiff sought the assistance of the broker in procuring from defendants an extension of the time of delivery. In response to this request a letter was written by the broker to plaintiff to the effect that defendants wanted “the goods to come right along.” The broker, however, claims that during the latter part of November defendants’ agent asked him to write plaintiff, and “ask him if it would suit just as well to have that flour distributed through December as to have it all come together the latter part of this month.” Again, nothing was done in response to this request for the time being, but upon the last day of November or the first day of December defendants’ agent again brought up the subject, and upon December 1st the broker wrote plaintiff a letter, in which he says, “Was talking to Austin, Nichols man to-day, and he says if it suits you best you can string his goods along through Dec. if it suits you best.” The receipt of this letter is acknowledged by the plaintiff upon the following day. The broker, who was sworn as a witness in behalf of plaintiff, finds the authority for his letter of extension entirely in the propositions for delay which he claims *259were made to him by defendants’ agent. He does not at all claim that this delay was procured from defendants in response to the request for extension originally made by plaintiff.
AVe thus have it that no consent by defendants to a modification of the original contract in respect to the time of delivery was communicated to plaintiff until after such time had expired. Assuming, as we do, that for the purposes of this appeal the evidence of the broker is to be believed that defendants did request a postponement of the delivery of the flour, such request was not communicated to plaintiff until he had become in default. The latter did not, in reliance upon this request and consent, neglect the opportunity still present to him of making a timely delivery of his merchandise, and there is no element of estoppel in this respect which may be invoked against the defendants. As stated before, we are unable to see how, upon this evidence, which is controlling upon this point, the finding may be based which we have already quoted to the effect that, before the time limited for the performance of the contract between the parties, the time for delivery was extended, and the original contract in this respect modified.
It seems to be urged by the learned counsel for the respondent upon his argument that, even though no extension of time of delivery was expressly given by defendants before plaintiff was in default, still other acts when the flour was shipped were such as to show an implied waiver of the time limitation, and permit a recovery such as was had in the action. It has been found that as each car was shipped an invoice thereof was mailed by plaintiff to defendants, and received by them, and that written notice of the arrival of each car was given to the defendants by the railway company as said cars arrived; also that a sight draft was drawn by plaintiff on defendants for the purchase price of each car at or prior to the date of shipment, and of which due notice was given to defendants. No express objections were forwarded by defendants to plaintiff in response to these communications until in January, but, as was expressly found, the defendants paid none of the drafts (with the exception of those already mentioned), and did not take any of the flour, or do anything whatever in relation thereto, until plaintiff brought to their attention in January the nonpayment of the drafts, when they took the position that the cars had not been shipped in time. A'Affiatever might be said, however, under other conditions in favor of sustaining a recovery by plaintiff based upon a waiver to be implied from the facts thus briefly referred to, it is sufficient upon this appeal to state that judgment has been rendered upon an entirely different theory, and that plaintiff’s complaint ex-. pressly disaffirms the idea that defendants in any way accepted the belated cars when they were shipped, and thus waived the default; said pleading alleging “that said defendants, in violation of said contract or agreement, refused to accept six cars of said flour upon its arrival in New York as aforesaid.” Independent of other questions raised in behalf of appellants, we think that upon this appeal plaintiff is limited to the conclusion reached by the trial justice that the time of delivery was extended before it expired, and that, the *260evidence not warranting this conclusion, a reversal and new trial must be had.
Judgment reversed, and new trial granted, with costs to appellants to abide event. All concur, except SPRING, J., who dissents.