I think this judgment should be affirmed. The letter of May eighteenth confirmed the sale calling for delivery on June twentieth. The attempt of the defendant, in its letter of June seventh, to repudiate the contract did not relieve it of its obligation. When the plaintiff refused to permit the defendant to repudiate its contract, the defendant wrote consenting to do that which it was obliged to do, but insisting that delivery should be made, “ not later than June 20th.” The original contract was expressed in the letter of May eighteenth,- and the subsequent communications did not alter the legal rights of the parties. Upon the strictest construction possible the plaintiff had until midnight, June twentieth, within which to make delivery. The delivery of the bricks at six twenty-five a. m. on June twenty-first was such a substantial performance as was contemplated by the original contract. While, in an action at law, upon an executory contract, time is regarded as of the essence, yet this rule does not require that the parties shall not have *295such reasonable latitude as is usual among business men. The contract is to be given a reasonable construction, with a view to giving effect to the intention of the parties at the time of making the contract. The allowance of such reasonable latitude is as much a provision of the contract as if it were expressed therein. A contrary construction would fail to give effect to the intention of the parties. As was well said in Furlong v. Barnes, 8 B. I. 226, “ A contract is not to be construed like a railway time table. The parties to it need not be punctual to a minute, unless the contract calls for that degree of punctuality to carry out its purposes; but it is enough that they are on hand so as to keep their agreement, as regards the time, according to its substance and spirit; and it is the duty of each party to conduct with good faith and reasonable liberality towards the other.” In this case the delivery which was made by the plaintiff was a compliance with the terms of the contract according to its spirit, and the refusal of the defendant to accept the bricks which were delivered was not made in good faith. In view of the circumstances under which the bricks were delivered, no damages resulted to the defendant; and the absence of good faith on the part of the defendant is evident from its previous attempt to repudiate its contract. The delivery was a few hours late, but was made before the commencement of the business of the next day. There is no suggestion in the record, nor is it claimed by the defendant, that it was damaged by reason of this short delay. No adjudicated case has been called to. our attention where so short a delay in making delivery was held to justify a refusal by the vendee to accept the goods contracted for, when the contract itself did not require or depend upon strict punctuality. In Buffalo & L. L. Co. v. Bellevue L. & I. Co., 165 N. Y. 247, after stating the general rule, “ that when a party by his own contract absolutely engages to do an act, it is his own fault and folly that he did not thereby provide against contingencies and exempt himself from responsibility in certain events,” the court says: “But there are many contracts from which by their very nature a condition may be implied that a party will be relieved from the consequences, of *296non-performance in some slight particular, when the obligation is qualified, or when performance is rendered impossible without his fault.” The rule that time is to be regarded as of the essence was originally designed to carry out the presumed intention of the parties. When it is clear that the application of this rule would be contrary to the intention of the parties, the reason for the application of the rule no longer exists and the rule itself is inoperative. The adoption of a reasonable construction, which gives effect to the original intention of the parties, is more in harmony with the spirit and reason of the general rule than is adherence to a narrow and literal interpretation, which does not effectuate such intention. The time of the delay was so short and, in view of the circumstances of the case, so plainly immaterial, that the parties could not have intended the transaction to fail on account of it. If this view be correct, the contract was fairly performed; and it follows that the rule of pleading, that evidence excusing performance cannot be given when performance is alleged, has no application.
The judgment should be affirmed, with costs.
GILDERSLEEVE, J., concurs.