Robinson Clay Product Co. v. John H. Thatcher & Sons , 154 N.Y.S. 106 ( 1915 )

PAGE, J.

This is the second appeal in this case. The facts are sufficiently stated in the former appeal. 150 N. Y. Supp. 658. We then held that the time for delivery was not of the essence of the contract as originally made, and had not subsequently been made of the essence of the contract by the defendant giving notice of its intention to cancel the order unless delivery was made on or before a fixed time. We further pointed out that if the time had been fixed in the original contract, as defendant contended, that the defendant had waived it “by an acceptance of a portion of the order after that [time] and requesting the plaintiff to thereafter deliver the tile, and, once waived, notice fixing a new time was necessary.” The testimony on this trial was substantially the same as before, and the court below should have directed a verdict for the plaintiff.

Judgment reversed, with costs to appellant, and judgment directed for the plaintiff for $233.58, with interest from June 20, 1913, with costs. All concur.