The action is upon a promissory note, as to the inception of which there is no dispute; nor is it disputed but that the same has not been paid. The controversy arises with reference to a
February 16, 1910, plaintiff and defendant entered into a contract whereby plaintiff agreed to sell to defendant a paper machine at the. stipulated price of $12,750 and to have same ready for shipment within eight weeks. This contract provided for payment as follows: $1,000 upon the signing of the contract and the balance by way of notes. The machinery was to be manufactured and it was not réady for shipment within the time provided for in the contract, and in fact was not set up and'in operation until November of that year. The counterclaim is for damages resulting from plaintiff’s breach of such contract as to time of delivery. Prior to the agreed time of delivery it became apparent that the machine would not be completed in time to comply with the contract in that particular, and plaintiff notified defendant of such fact. A lengthy correspondence then followed between these parties, continuing until after the delivery of the machine. The failure to comply with the agreement at the contracted time v seems to have resulted, to some extent, from labor difficulties and there is slight intimation of some misunderstanding with reference to certain drawings furnished by the defendant. The letters from the defendant following the notification of plaintiff’s inability to deliver on time, are ample to establish a waiver of such time of delivery. Such letters are replete with requests to make delivery as soon as possible, and do not contain any intimation of a present or prospective claim of damages for the delay.
Following the delivery of the machine the defendant executed and delivered'to plaintiff the promissory notes in accordance with the terms of the original agreement. These notes were renewed from' time to time for short intervals, until eventually plaintiff refused further renewals of the note in suit, and commenced action thereon. Extensive correspondence was had between the parties relative to these renewals and the payment of this particular note and such letters contained no intimation of a claim for damages for delay in delivery. It was only when this action was brought that this claim was first asserted by the defendant.
From the above it will be noted that the parties mutually agreed to an extension of the time of delivery because of the exigencies of the situation. This would not, however, necessarily defeat a claim for damages for the delay. The parties, however, further, by the asking and the granting of the extension of credit, adjusted all such claim for damages and fully satisfied same. Defendant made claim to a right of such extension of credit because of the delay in shipment. The plaintiff acquiesced in such claim and granted such extension. The extension of credit was a valuable concession and affords ample consideration for the waiver and satisfaction of the damages occasioned through the delay in delivery. In effect the parties made a new agreement whereby the time for delivery
As was said in McCreery v. Day (119 N. Y. 9): “ The technical distinction between a satisfaction before or after breach seems to have been disregarded in this State and a new agreement by parol, followed by actual performance of the substituted agreement whether made and -executed before or after breach, is treated as a good accord and satisfaction of the covenant.”
For the foregoing reasons the judgment appealed from should be affirmed, with costs.
All concurred, except Foote, J., who dissented in an opinion.