Tilt v. The La Salle Silk Manufacturing Co. teen days after the second, and so on until the order is executed, which shall comprise three or more deliveries. The plaintiffs (composing the firm of B. B. Tilt & Son) wrote underneath the contract as above given the following clause, and signed their firm name below the addition thus: "City of New York. "We approve of the foregoing contract, with the understanding that we are not to be held responsible for any delay beyond our control in delivering this organzine, and that our inability to deliver it within the time specified in this contract shall not be made a cause or pretext for refusing to accept the organzine upon its arrival by the party of the first part to these presents. B. B. TILT & SON." One of these duplicates, with this addition and the signature of the plaintiffs, was then taken to the defendants' office and left with them. The defendants received and retained it without objection. The other duplicate, with the same addition, was retained by the plaintiffs in their own possession. In pursuance of this contract (as the judge at the trial found), the plaintiff's delivered to, and the defendants received and paid for, three bales of organzine, the first bale being delivered to defendants on the 19th of September, 1870; the second bale on the 4th of October, 1870; and the third bale November 3d, 1870. The fourth bale was received by the plaintiffs on December 17th, 1870, and (as the judge at the trial found) conformed substantially to the "size". or quality required by the contract. Defendants were notified thereof, but declined to receive it, claiming that there was no contract, and that it had not come within time. Subsequently, however, negotiations were had between the parties looking to an acceptance of the bale by the defendants, and the plaintiffs did not dispose of it, but retained it (as the judge found) for account of and subject Tilt v. The La Salle Silk Manufacturing Co. to the orders of defendants. The plaintiffs, on May 5th, 1871, notified the defendants that such bale would be held subject to the defendants' orders until May 10th, 1871, at 12 м., and at that time would (at a specified place) be sold at public auction, and the plaintiffs would look to the defendants for the difference between the amount realized at such sale and the price fixed by the contract. The defendants continuing to refuse to receive and pay for the bale, it was sold according to the notice. The proceeds of such sale were $1,016 97 less than the contract price of the bale. In order to bring the case within the jurisdiction of the Marine Court, plaintiffs waived the $16 97, and sued for $1,000 damages. The plaintiffs showed affirmatively that they had used all the means in their power to deliver the goods within the time specified for delivery, and had been unable to do so on account of the Franco-Prussian war, which was then going on in Europe. From December 17th, 1870, to May, 1871, the market price of silk was declining. The plaintiffs had judgment for $1,000, the difference between the contract price and the proceeds of the sale on May 10th (less $16 97 waived by the plaintiffs). Henry H. Anderson, for appellants. Samuel J. Crooks, for respondents. DALY, Chief Justice. The proposed contract, signed by the defendants' agent, Kingsbury, which provided that each bale should be delivered between certain periods, was left at the plaintiffs' office, but as the war in Europe made the delivery of goods then very uncertain, the plaintiffs were unwilling to bind themselves unconditionally to deliver within the prescribed period, and a qualification of the contract was written beneath the signature of the defendant's agent, providing that the plaintiffs were not to be held responsible in delivering the organzine for any delay beyond their control; that their inability to deliver within the time specified in the contract should not be made a cause or pretext for refusing to accept the organzine upon its arrival, and that, as thus qualified, they Tilt v. The La Salle Silk Manufacturing Co. approved of the contract. This qualification, called by the witnesses "the appendix," was added to the duplicate copies of the proposed contract left by the defendant's agent. The plaintiff's name was signed to each copy, one of which was retained by the plaintiff, and the other was delivered by the plaintiff Albert Tilt to Mr. Simpson, the vice-president, at the office of the company, he being the chief managing officer of the defendants. Simpson admitted, when examined, that the defendants had this duplicate in their possession. He says that it was not delivered to him, but to the secretary; but admits that the secretary told him upon the day it was received, that Mr. Tilt had brought the duplicate, and left it at the defendants' office; and it does not appear that any objection was then made by him, or by any of the officers of the company, to this qualification of the proposed contract, but, on the contrary, when the first bale of the organzine arrived, which was within a day or two of the 19th of September, and after the time named in the contract as originally proposed, the defendants accepted and paid for it without objection; a circumstance fully warranting the finding of the judge that the defendants had assented to the modification made by the plaintiffs, and agreed that any inability on the part of the plaintiff to deliver within the time specified should not be made a cause or pretext for refusing to accept the organzine upon its arrival. Of the correctness of this conclusion there cannot be any doubt upon the evidence, and I think it is equally manifest that there never would have been any question on the part of the defendants respecting this qualification of the provision. about deliveries, but for the fact that about the time that the second bale was delivered the price of organzine fell in the market, and continued steadily thereafter to decline. No one of the bales arrived within the time originally specified. The plaintiffs proved that they telegraphed to Europe for the amount required by the defendants as early as July 23d, and that their inability to deliver more rapidly than they did, grew out of the war, and was a delay over which they had no control. Simpson, the vice-president, testified that after, or about Tilt v. The La Salle Silk Manufacturing Co. the time when the second bale arrived (which was on the 4th of October), and after the defendants had been notified of its arrival, he had a conversation with Albert Tilt, one of the plaintiffs, in which he told him that the company did not consider themselves holden by any contract; that he would buy as the company wanted silk, but that it should not be a precedent for the plaintiffs to claim any contract as existing and binding upon the company, and that he gave as a reason for there being no contract that the time had elapsed. Albert Tilt denied that he had ever had any such conversation with Simpson at the place and time referred to by him, or anywhere else, and, so far as the statement of Simpson was in any way material, it cannot be considered, but must be regarded as disproved, the judge having found for the plaintiffs. Whether, however, this statement was true or not, the defendants accepted and paid for this bale, and nothing further occurred until the third bale arrived, which was on the 3d of November, twenty-three days after the time originally specified. The price of silk had now materially fallen, and as there is some conflict between Simpson's and Albert Tilt's accounts of what occurred when this bale came, we must regard, under the judge's finding, Tilt's statement as the correct one. He says that Simpson came to the plaintiffs' office to see about the third bale, and claimed that there was not any contract—that the "clause," what has been heretofore referred to as the "appendix," vitiated the contract-a view of the effect of that provision which it would seem did not occur to him, or which he did not suggest to the plaintiff until this late period, four months and a half after the date of the contract, when this description of silk, organzine, had fallen in price, and he could purchase it below the contract price in the market. Tilt says that he claimed that the goods did not come in time, and that Tilt told him that it was not the plaintiffs' fault. That Simpson said that he was not obliged to take the bale; that silk was lower; that he could buy it elsewhere for less money; that he was short of money and did not want to buy it with cash; that the company had no funds; that he was not willing to advance funds for them to pay cash; that he could go elsewhere Tilt v. The La Salle Silk Manufacturing Co. and buy on time for less money. Tilt told him that he did not want to have any trouble about it, that the defendants ought to take the bale; that it was delivered under the contract, and that finally Simpson said that, without biasing his right to refuse the four bales, he would accept the third bale, if the plaintiff would reduce the amount to currency, with three months' interest, and take the company's note, which Tilt agreed to do. When this was finally settled, and Simpson was about leaving, he sought particularly to impress upon Tilt that, in accepting this third bale and taking it at the contract price, it should not affect the defendants' right to refuse the fourth bale, to which Tilt answered that he did not want then to discuss that; that he would discuss it when the fourth bale came; that he would be willing to submit to arbitration; that he was delivering the third bale under the contract, and, of course, did not want to talk anything about the fourth bale, as it had not arrived. The fourth bale was received by the plaintiffs on the 17th of December. The defendants were notified of its arrival, and an invoice was sent to them, which was sent back. Tilt then called upon Simpson, who said he would not take it; that there was no contract, and that he was not obliged to take it. Tilt replied that a contract was a contract; that they had worked along under it and delivered three bales, two of which there never was any dispute about; that it was then a late hour to raise an objection, and he offered to leave the matter to arbitration, and did everything that he could to induce him to take the bale; but he declined to do so. The plaintiffs' course was then to sell the bale on the defendants' account, holding them responsible for the difference between the contract and the market price; but it seems that there was a negotiation between Simpson and Albert Tilt in respect to the purchase of the stock which the latter held in the company, pending which there appears to have some understanding or expectation that Simpson would take the bale; for at some time in the month of February following, after or about the time of the transfer of Tilt's stock to Simpson, he (Simpson) was asked by the plaintiff's employee, Seebass, |