to make an allowance to the guardian when his services have been faithfully and attentively performed; and, if any disposition on the part of the executors existed to confine the allowance to a smaller amount, it was their duty to meet this subject, and to bring it to the attention of the surrogate before the final decree was entered in the proceeding. This they failed to do, and allowed the final decree to be entered, settling the executors' accounts, and including this payment, and after that, without any substantial excuse for the omission to devote previous attention to this subject, the application was made to the surrogate to readjust the allowance at a smaller amount, and that he declined to do. In that decision it cannot be held that he was in error, although a smaller sum would probably have compensated the guardian for all the services and attention bestowed by him in the course of the proceeding. It was for him to fix and adjust the allowance upon the affidavits and papers before him; and, as no excuse was offered for the omission of the executors to present proof by way of affidavit or otherwise upon this subject to the surrogate, a case was not made out which, under the common principles applicable to defaults, entitled the executors to a further hearing concerning the guardian's compensation. The allotted time for that object had been allowed to pass without giving the subject attention; and, as no substantial excuse was presented for the omission, the surrogate was justified in denying the application which was made. The order consequently should be affirmed, but, as the guardian has evidently been subjected to no further expense, it should be without costs to either party.

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

BROWN . NORTON.

(Supreme Court, General Term, First Department. November 23, 1888.) 1. SALE-WHAT CONSTITUTES-MUTUAL AGREEMENT.

Defendant, engaged in business in New York city, addressed to plaintiff, also of New York, the following order: "I will take 10 M. blue Welsh fire-brick, at $24 per thousand, upon the opening of navigation on the Hudson. Let me know if my order is accepted" to which plaintiff replied, promising to execute the "order for 10,000 blue Welsh fire-brick, at $24 per thousand, on dock at New York city, upon opening of navigation." Held that, as the goods were to arrive from abroad, the reference to delivery on dock did not create a new proposal, and the contract was binding upon defendant; especially as he, without dissenting to any of the terms, responded to plaintiff's reply, answering an inquiry as to the time navigation opened on the R. canal.

2. SAME-PARTIAL DELIVERY-REFUSAL TO ACCEPT.

Under a contract for the sale of 10,000 blue Welsh fire-brick, a tender of 9,986 of such brick, of which 100 are broken, does not render the purchaser, who refuses to accept, liable for the price.

Appeal from circuit court, New York county.

Action for the price of goods sold. Defendant appeals from a judgment entered on a verdict directed by the court in favor of plaintiff.

Argued before VAN BRUNT, P. J., and BARTLETT and DANIELS, JJ.

W. B. Winterton, for appellant. Bangs, Stetson, Tracy & McVeagh, (F. 8. Bangs, of counsel,) for respondent.

DANIELS, J. The verdict was recovered for the price of 10,000 blue Welsh fire-brick, with interest thereon. The brick were imported from Liverpool by S. L. Merchant & Co., under an order given to them for that purpose, by the defendant, in February, 1886. There were but 9,986 of the brick laden upon the steamer, and, after her arrival, and the unloading of the brick upon the wharf, notice was given by Merchant to the defendant of their arrival as being 10,000 brick, and he was requested to look after them. He failed to do so at that time, on account of his boat not being in a condition to receive

them, and after they remained upon the wharf for five or six days they were placed in a warehouse subject to the storage of 40 cents a hundred per month. After that the defendant purposed to receive the brick, but, finding them stored in this manner, he refused to do so. Merchant & Co. afterwards assigned and transferred their claim for the price of the brick to the plaintiff in this action.

The defendant resisted the right of the plaintiff to maintain the action upon the ground that no binding contract for the purchase of the brick had been entered into between himself and Merchant & Co. The contract, so far as it was entered into, was made by correspondence. The proposal to purchase the brick originated with the defendant, and it was in these words:

"NEW YORK, Feb. 20, 1886. "Messrs. S. L. Merchant & Co., 25 State St.-GENTLEMEN: I will take 10 M. blue Welsh fire-brick, at $24 per thousand, upon the opening of navigation on the Hudson. Let me know if my order is accepted, and oblige,

"Yours, etc.,

F. O. NORTON.

To that Merchant & Co. replied in the following manner:

"P."

"NEW YORK, 2, 23d, 1886. "F. O. Norton, 92 B'way, City-DEAR SIR: We are much obliged for your order of Feb. 20th, for 10,000 blue Welsh fire-brick, at $24 per thousand, on dock at New York city, upon opening of navigation. We will execute the order. Yours, truly, S. L. MERCHANT & Co.

"K." And added to this reply, in the form of a postscript, the inquiry when nayigation opened on the Rondout canal. And to that Norton sent this reply:

"NEW YORK, 24th Feb., 1886.

"S. L. Merchant & Co., 25 State St., City-GENTLEMEN: In reply to your letter of 23d inst., would say that the Rondout canal will be open on or about the 1st of April. Yours, truly, F. O. NORTON."

The objection to this correspondence as a contract is placed upon the statement, in the reply of Merchant & Co., to the defendant's proposal that the brick should be delivered on the dock in New York city. That delivery was not in words made a part of the defendant's offer; and for that reason it has been urged that their addition created a different proposal, instead of an unqualified acceptance of that made by the defendant, and therefore required acceptance by him to make it a binding contract. But it is to be inferred, as these parties were engaged in the business, and understood the source from which the brick would be obtained, that they would be unladen upon a dock in the city of New York, in performance of the proposal made by the defendant, even if no reference had been made to that fact by the answer of Merchant & Co. The brick under the proposal were to be delivered upon the opening of navigation on the Hudson; and that delivery, without anything more being said upon the fact, would be made in the natural and ordinary course of business, upon a dock on the Hudson river. And such is the rule which has been followed by the courts concerning the delivery of goods to arrive from abroad. Ang. Carr. (5th Ed.) §§ 309-312. The reply of the defendant to the answer of Merchant & Co. also inferentially discloses that to have been his understanding of the proposal which was made, for that reply was written and sent upon the evident conclusion that the brick under the agreement, as it was proposed by him, were to be delivered on a dock at New York city; for, if that had not been his understanding of his own proposal, something more would have been added to his reply on this subject, expressive of his dissent from this landing. But, so far from doing that, his final reply simply answered the question concerning the opening of navigation in language appearing to assume that he was to receive the brick under his proposal in the manner mentioned in the answer of Merchant & Co.

There is no doubt as to the rule requiring the answer to be as specific as the proposal, to create a contract, where it is proposed to make it by correspondence. This rule is fully and clearly maintained by the authorities. Myers v. Smith, 48 Barb. 614; 1 Pars. Cont. (6th Ed.) 475, 476; Uhlman v. Day, 38 Hun, 298; Ashcroft v. Butterworth, 136 Mass. 511; Stagg v. Compton, 81 Ind. 171; Baker v. Holt, 56 Wis. 100, 14 N. W. Rep. 8; Derrick v. Monette, 73 Ala. 75. And the correspondence, to satisfy the statute of frauds, where the case is within it, as this case surely was, must include and embody all the substantial attributes of the agreement. Dickinson v. Rawson, 12 Wkly. Dig. 563. This correspondence was such as to comply with these rules, and therefore to create a binding contract on the part of the defendant to receive and pay for the brick on their arrival at the port of New York, and their delivery upon the wharf, on the opening of navigation on the Hudson; and it appeared as a fact that this navigation was open on the 31st of March, when the brick arrived, and that the time had also arrived when the defendant himself declared that navigation would be open on the Rondout canal, through which it was probably designed by him to take these brick.

But, as the defendant refused to accept or receive the brick, the point is presented whether they were in the condition which the contract required them to be in, to subject him to the obligation of receiving and taking the brick, and paying the price for them. At the time when the brick were unladen upon the wharf they were 14 in number short of the contract quantity; and in the warehouse receipt, which was given on the 6th of April, when they were taken in store, it is stated that about 100 of the brick were broken. When these brick were broken in this manner does not appear otherwise than by inference from the evidence. They do not seem to have been handled or moved in any manner after they were unladen from the steamer on the wharf until they were taken into the warehouse; and there is ground, therefore, for inferring, either that the brick were broken when they were laden on the steamer, or in her transit across the ocean, or in their delivery from the steamer onto the wharf. No intervening circumstance appears to have arisen which would account for the breaking of the brick in any other way, and they are stated to have been in this condition at the time when they were received in store. Under the contract, as the brick were to be imported by Merchant & Co., they were at their risk until their delivery to the defendant upon the wharf; and as these brick were broken either when they were laden upon the steamer, or during their carriage, or in the process of unlading them, that risk and loss was upon Merchant & Co., and not upon the defendant. That they were short in number, and broken in this manner, appeared by the plaintiff's evidence upon the trial; and this fact was made a ground for the support of a motion to dismiss the complaint at the close of the plaintiff's evidence. If the brick in this condition had been accepted and received by the defendant, the contract might be held to be so far performed as to subject him to liability for the price, less the reduced value of the broken brick and the value of those not delivered at all, for the case then would present the fact of a substantial performance of the agreement, which would render the defendant liable to this extent. Clapp v. Thayer, 112 Mass. 296; Dauchey v. Drake, 85 N. Y. 407, 411. But the fact which was essential to bring this case within that rule did not exist, for the defendant at no time accepted or received the brick, or any portion of them. A delivery order was obtained for the brick, which is stated to have been indorsed and sent to the defendant when the goods were entered at the custom-house. But this delivery order was not retained by the defendant, but was returned to the witness Merchant, without any explanation or statement whatever, with the bill which had been rendered for the brick. This bill is dated on the 1st of April, 1886, and the import of the evidence is that with the order it was returned soon after that date to Merchant. There was therefore no acceptance of the brick through the medium of this transac

tion, as there might have been if the order had been retained by the defendant. Hayden v. Demets, 53 N. Y. 426.

As the case stood upon the proof, therefore, the question arises whether the defendant was so placed in default for his refusal to receive and accept the brick as to render him liable for the purchase price. The contract, it is to be remembered, was wholly executory between himself and Merchant & Co.; and it was for them, under the law, to perform it according to its terms, before the defendant could be made liable to pay the purchase price of the brick. 2 Pars. Cont. (6th Ed.) 656. They did not so perform it, for the brick were not only deficient in quantity, but about 100 of them appear to have been broken; and it was in this condition that they were tendered and offered to the defendant. And they continued to be in the same condition when he returned the delivery order, thereby refusing to receive the brick. What the law requires to render it obligatory upon a purchaser to receive property under a contract of sale is that the property itself, both in quantity and quality, shall conform to the agreement for its purchase. If it is deficient in either respect, the purchaser may refuse to receive or accept it, and in that manner avoid liability for the payment of the purchase price. This principle applies especially to executory contracts which the party may refuse to perform because of the property being deficient in quantity or quality; and in this class of cases the rule has been stated to be that, "if the contract was entire, the plaintiffs were not entitled to recover, no part having been accepted, without a delivery, or an offer to deliver, all the articles contracted for in the condition required by the contract." Husted v. Craig, 36 N. Y. 221, 223. The rule was also stated in nearly the same words by CHURCH, C. J., in Kein v. Tupper, 52 N. Y. 550, where it was stated to be "well settled in this state that upon a contract for the delivery of a specific quantity of property, payment to be made on delivery, no action will lie until the whole is delivered." Id. 555. This results from the construction and effect of the language employed by the parties in making and entering into their agreement; and where they have agreed on the one side to deliver a specific quantity and description or quality, and to accept it in the other, and then only to pay the purchase price, the offer or tender of the property in the condition required by the agreement is a condition precedent to the creation of the liability; and the rule upon that subject is that "whenever a party by his own contract creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Oakley v. Morton, 11 N. Y. 25, 30, 31; Baker v. Higgins, 21 N. Y. 397; Hill v. Heller, 27 Hun, 416. Upon this subject it has been correctly said that "courts have no dispensing power to absolve men from their legal engagements, nor can they make contracts for them. The delivery was a condition precedent to the payment of the price, and the plaintiff must first perform on his part before he has any ground of complaint against the defendant." Mead v. Degolyer, 16 Wend. 632. A strict compliance with this rule has only been dispensed with in cases where a defective performance, not in essential particulars, has been accepted or received by the party proceeded against. Brown v. Weber, 38 N. Y. 187. And, as no such performance took place in this instance, the principle, in its full and unqualified force, is applicable to the disposition of this controversy.

*

The defendant contended at the trial, and his own evidence had a tendency to prove the correctness of his position, that further time had been given to him in which he could accept and receive the brick; but this was contradicted by Mr. Merchant, and the jury found the fact not to have been as the defendant stated it. There was accordingly no waiver whatever of his right to insist upon a complete performance of the agreement both as to quantity and quality of the brick; and, when it appeared, as it did by the plaintiff's evidence, that Merchant & Co. had not been in a condition to perform the agree

ment upon their part, the conclusion legally followed that the defendant never became liable for the payment of the purchase price of the brick. There had been no waiver whatever of his right to insist upon a complete performance of the agreement, and, when it appeared that Merchant & Co. could not perform it, and did not propose to perform it, as it had been made, they failed to maintain their action for the recovery of the purchase price; for at least a tender of the property as it was described in the contract, or an offer to deliver it to the defendant, was a necessary fact to entitle them to the payment of the purchase price. No such tender was or could be made of the brick, and the defendant consequently was entitled, upon his motion, to a dismissal of the complaint. The judgment should be reversed, and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J., and BARTLETT, J., concur.

NEW ENGLAND MUT. LIFE INS. Co. v. ODELL et al.

(Supreme Court, General Term, First Department. November 23, 1888.) INTERPLEADER-WHEN LIES-DISPUTED AMOUNT INJUNCTION.

Where a life insurance company admits that the amount insured is due on the policy but denies a claim for dividends thereon, it cannot, in an action of interpleader against the claimants under the policy, tender the former amount, and enjoin the bringing of an action for dividends; the amount due from plaintiff not being the proper subject of controversy in such an action.

Appeal from special term, New York county; GEORGE P. ANDREWS, Justice.

Action by the New England Mutual Life Insurance Company against Jonathan Odell, Daniel H. Mills, William A. Odell, and Hannah S. Brick, to compel defendants Jonathan and William A. Odell and Daniel H. Mills to interplead with defendant Hannah S. Brick as to their right to a certain policy of life insurance payable to the latter, tendering the amount of the policy, and seeking to enjoin the former defendants from prosecuting an action for dividends claimed by them to be due on the policy. Injunction granted, and defendants Jonathan and William A. Odell and Daniel H. Mills appeal. Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. George W. Van Slyck, for appellants. Roger Foster, for respondent.

VAN BRUNT, P. J. The fact (which is conceded by the respondents) that the sum which the plaintiff is willing to pay is not the sum which the defendants and appellants claim, is fatal to the maintenance of this action. Railroad Co. v. Arthur, 90 N. Y. 235. In this case, the principle is distinctly enunciated that, in an action of interpleader, the amount due from a plaintiff cannot be the subject of controversy, and this seems to be simply restating a rule which appears always to have prevailed. It is urged, in answer to this objection, that because the appellants claim more than the plaintiff admits to be due, the case is thereby turned into an action in the nature of an interpleader. We have failed to find any such principle laid down in the cases stating the distinctions between strict actions of interpleader and actions in the nature of interpleader. In strict actions of interpleader legal rights are only enforced; in actions in the nature of interpleader, equitable relief, in addition, is sometimes given; and that seems to be the whole of the distinction. The respondent, however, claims that the rule above stated does not apply, because the appellants could maintain a separate action for the part of the claim which is disputed by the plaintiffs.

It would seem that if the owner of a policy of life insurance should attempt to maintain one action upon the policy for the amount insured, and another action for the dividends which had been declared upon the policy, an objection