DANIELS, J.-The object of this action was the recovery of damages for the non-performance of two contracts for the delivery of walnut lumber by the defendant to the plaintiffs. The contracts were in writing, and they were made in the year 1887. The first of these contracts is in the following words and figures:

NEW YORK, June 27, 1887.

We have this day sold to J. E. Ackerman & Co. the following shipping walnut for delivery at any time, or times, during the next six months; the shipments to be commenced as soon as possible after this date in any quantities; the price to be $90 per thousand feet, less 2 per cent. f. o. b., Louisville, Kentucky:

ASTORIA VENEER MILLS & LUMBER Co.,

W. H. WILLIAMS, Manager.

The second consisted of a proposal made by the defendant to the plaintiff on the 28th of September, 1887, for the sale of 170,000 feet of walnut lumber, to be delivered on or before the 1st of April, 1888, for the prices therein mentioned, and on terms in other respects similar to those contained in the first agreement. This proposal was accepted in writing on the following day by the plaintiffs, but none of the lumber mentioned in it was at any time delivered to the plaintiffs.

After the making of the first contract three consignments of the lumber mentioned in it were made by the defendant to the plaintiffs and paid for by the latter. The consignments included about 36,000 feet, the last having been made on the 18th of November, 1887, leaving much the larger part of the contract unperformed.

It was alleged by the plaintiffs that the defendant had refused to proceed further in the performance of either contract, and had thereby become liable in damages to the plaintiffs. To support this allegation, evidence was given showing disagreements to have arisen between the parties concerning their rights and obligations under the agreements, but more especially relating to the performance of the first one that was made. The claim was advanced by the plaintiffs that they were entitled to, and that there had been an understanding that they should have, ten days after the delivery of the lumber at the city of New York to pay the price of each consignment delivered. This was denied by the defendant, whose agents insisted that the price of each consignment became payable at the yard, or as soon as it was laden upon the cars at the city of Louisville.

N. Y. STATE REP., VOL. XXXIII.

124

Precisely when this position was first taken by the defendant was not shown by the evidence, but it surely appeared as early as the letter of the 5th of November, 1887, was received by the plaintiffs, for in that letter it was stated by the writer, who subscribed himself the manager pro tem. of the defendant, that he had consulted with Mr. Williams, who was the general manager of the company, and was informed by him, "that when the contract was made, it was understood to be spot cash." And in a letter written to the plaintiffs on the 9th of the same month, and subscribed by Mr. Williams, this passage is contained, “as I told Mr. Ackerman at the time he visited us, that there was some slight feeling on the part of the company as regards payments, it is useless for you to argue this matter with them, as I know of my own knowledge that they will insist on payment on yard at Louisville." Neither letter contained a direct refusal to deliver without payment being first made at Louisville, while both evinced that to be clearly the final design. And as no date has been given to the interview at the branch office between Mr. Williams and Mr. Rodamor, one of the plaintiffs, it is reasonably to be inferred that it took place after these letters. For in that interview still more positive ground was taken as to this claim than had been disclosed in the letters.

At that time Mr. Williams testified: "I positively refused to deliver them another inch of goods, without the cash was paid in Louisville, under any circumstances." And if this had been accepted as final and decisive by the plaintiffs, it would have supported their action for damages, provided the contracts should be construed to entitle the defendant to payment only after the consignment arrived at New York, and was there examined and accepted by the plaintiffs. But they did not act upon it as a termination or breach of the defendant's obligations under the contracts. They continued, on the contrary, to treat with the agents of the defendant for the further delivery of lumber on their own terms, to which there was a refusal to accede on the part of the defendant. At the time of this refusal, the same witness continued his testimony by adding that "they simply wanted to get the goods, and I notified them again to go down to Louisville, there was some eighty thousand feet ready there." And at the same time he stated that there was a car-load at New York which this partner wanted delivered, and wanted ten days on it. But the witness refused to deliver it, and said that he was going to keep it till paid for. And this condition of the affairs of the parties seems to have continued until a later and final interview took place between the same partner and Mr. Rodamor, who was the defendant's agent or broker at the city of New York. His testimony was that this was probably sixty or perhaps thirty days after the last delivery, which would make the time about the 18th of December, 1887, or of January, 1889. His evidence was that, at that time, Mr. Rodamor said "he would not accept any more unless he had ten days' credit on it after its delivery in New York. And I said I decline to go on with that contract, my share of it," which seems to have terminated the interview. After that the plaintiffs by letter

of the 22d of March, 1888, made further overtures and proposals after, as it was stated, an interview with Mr. Williams, in which they wrote that they wanted the lumber badly, and "would be perfectly willing to make any reasonable compromise that might be mutually satisfactory, whereby a later date might be named for the completion of the same. That we are ready and willing to receive and pay for the lumber within ten days after arrival and inspection here, and that if a compromise date was agreed upon, that we would receive the lumber as fast as desirable." But no action was taken on this letter resulting in any change of the situation. And this letter, as well as the evidence of Mr. Rodamor, confirms the probability that the plaintiffs did insist on this credit of ten days. He testified that it was to include no more than the time required for lighterage and inspection of the lumber, which would consume about that period. But the defendant's evidence tended to prove the requirement to be for an absolute credit of ten days, irrespective of these acts, and after the delivery should become complete. Who was right in this disagreement it was for the jury to decide, and they determined the scale in favor of the defendant, thereby finding that the plaintiffs were not willing to receive the lumber without a credit for the price of a fixed period of ten days after its delivery. Neither contract gave them the right to that credit, and the refusal to receive the lumber otherwise was a refusal to perform. And as the plaintiffs did not elect to stand upon the preceding refusal of the defendant to send the lumber forward, without the payment of its price at Louisville, but continued to deal and negotiate with the agents of the defendant for a different adjustment of their differences, and maintained the contracts as still subsisting, invoking performance on their own understanding of them, they lost their right to complain of this prior refusal of the defendant's managers and agent as a ground for damages in the action. They elected to temporize and negotiate rather than assert a matured right of action, and thereby waived that technical right. And for that they were defeated at the trial.

There are no exceptions in the case to support the appeals, but they depend altogether on the action of the jury upon the evidence. That action is sustained by the facts the jury must have found were proved, and the judgment and order should be affirmed.

VAN BRUNT, P. J., and BRADY, J., concur.

PATRICK KENNEY, Resp't, v. THE OCEAN STEAMSHIP CO. OF SAVANNAH, Appl't.

(Supreme Court, General Term, First Department, Filed October 24, *1890.) NEGLIGENCE-VERDICT.

The only evidence as to how the accident occurred was that given by the plaintiff, who contradicted himself in several important particulars. Held, that the court should have directed a verdict for defendant, and that a verdict for plaintiff should not be allowed to stand.

APPEAL from judgment entered upon verdict and from order denying motion for new trial.

Action to recover damages for a personal injury sustained by plaintiff, through an alleged negligence of defendant's servants, in throwing a stick of cord-wood four feet long into the fireroom of their steamship, where the plaintiff was repairing a boiler, without giving any warning to the occupant of the fireroom. The plaintiff was struck on the head, and is alleged to be completely disa bled for life.

Defendant claims, on the contrary, that on the day in question cord-wood was repeatedly thrown down the ventilator used for that purpose, and several witnesses testified that it was done in the usual way, and that the usual signal to stand clear was given before the wood was thrown down. The only direct evidence as to how the accident occurred was that of the plaintiff himself. N. Bijur, for app'lt; H. A. Foster, for resp't.

VAN BRUNT, P. J.-Much as the court may sympathize with the plaintiff because of the injuries which he has received by the unfortuate accident which forms the subject-matter of this action, we cannot see from the evidence in the case that he has either established the negligence of the defendant or freed himself from contributory negligence.

It is evident from a reading of the testimony of the plaintiff that but little reliance can be placed thereon; as in all the material points of the case he not only contradicts himself but he is also contradicted by perfectly credible testimony. He says in one place that he was working upon the boiler at the time of the accident; in another that he had quit work. But the evidence conclusively shows that he had been through work for a considerable period of time before the happening of the accident. In one place he states that no wood had been thrown down the ventilator during that day and that he supposed all the wood had been taken in; and in another he says; "Of course I knew wood was going down."

In reference to the signal being given he says he was working upon the boiler and did not hear any signal: while, as already said, the evidence is that he had not been working upon the boiler for some time and that the signal was given and that wood had been previously thrown down there and was lying there at the time of the happening of the accident.

We do not see under such circumstances how it is possible to allow the verdict of the jury to stand. Upon this condition of the evidence the court should have directed a verdict in favor of the defendants at the close of the case; as where it is apparent that the testimony of a witness is utterly unreliable a verdict should not be allowed to be based thereon.

In stating in this case that the testimony of the plaintiff was utterly unreliable we do not intend to cast any reflection whatever upon his honesty. Ilis memory had undoubtedly been affected as one of the results arising from the accident. And we think that the verdict of the jury shows that they did not believe either that the defendant was guilty of negligence or that the plaintiff had shown himself free from contributory negligence or they

would have rendered a larger verdict considering the evidence in respect to the injuries which this plaintiff had received.

Upon the whole case therefore we are of the opinion that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

DANIELS, J., concurs; BRADY, J., concurs in the result.

THE PEOPLE, Resp'ts, v. ROBERT H. SPRIGGS, App'lt. (Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. CRIMINAL LAW-ASSAULT.

Facts sufficient to sustain a conviction of assault in the second degree. 2. SAME-EFFECT OF GOOD CHARACTER.

The good character of the defendant is not a shield for crime, but an important ally on the question whether he would be likely to commit the crime charged, and is to be considered with the other evidence bearing upon the question of guilt.

APPEAL from the general sessions on conviction for assault in the second degree.

Ambrose H. Purdy, for app'lt; McKenzie Semple, for resp'ts.

BRADY, J.-This case presents very little for consideration. The jury, on conflicting evidence as to the assault charged, found for the people, and under instructions to which no exception could be well taken. The story of the appellant was incredible. The attempt to put upon the complainant the infliction upon himself by his own weapon of the wounds he received, is one of those remarkable subterfuges to which criminals resort to shield. themselves from the consequence of misdeeds. One of these wounds was in the chest, extending inward and forward, penetrating into the pericardium or sack which surrounds the heart. If the complainant entertained a suicidal intention, and tried to carry it out, this injury he might have done himself, but he was engaged in an altercation begun by the appellant, as the jury have found, the latter having a knife which he used with felonious design, no doubt.

The evidence shows a bad feeling by these parties and a previous quarrel. Bad blood had been engendered by a variety of circumstances, and the offer in regard to the training of the filly, which was designed to further prove it, and for no other purpose, is too insignificant under the circumstances disclosed to receive a moment's consideration. If there were not abundant evidence of the ill feeling established by grave facts and circumstances a different view might be entertained of it. It affords, therefore, no reason for any interference with the judgment appealed from.

The learned recorder, on the element of good character, charged substantially all that he was requested to say, and certainly all that could be demanded of him. The learned counsel for the appellant, feeling doubtless the emergency in which his client was placed, pressed the advantage of good character beyond the limit of its legal effect. It is not a shield for crime, but an ally of the prisoner, and an important one on the question whether he won'!