subject to approval condition. 1. Under a contract to buy skins to be approved by a person named, such approval is a condition of buyer's performance unless waived or excused. [See annotation on this question beginning on page 864.] Contracts, § 504- parol extension validity. - 2. The time for delivery of skins fixed in a written contract cannot, in view of the provisions of the Statute of Frauds, be extended by parol. [See 23 R. C. L. 1394. See also annotations in 17 A.L.R. 10; 29 A.L.R. 1095.] Evidence, § 1364 time to deliver skins. skins acceptable to a specified per- breach. effect of waiver of (Hiscock, Ch. J., and McLaughlin and Crane, JJ., dissent.) APPEAL by defendant from a judgment of the Appellate Division of the Supreme Court, Second Department, affirming a judgment of a Trial Term, Part II., for Queens County (Gannon, Jr., J.), in favor of plaintiff in an action brought to recover damages for breach of contract to purchase skins. Reversed. The facts are stated in the opinion of the court. (242 N. Y. 425, 152 N. E. 250.) Messrs. Louis Marshall and Monroe J. Cahn, with Mr. Edward B. Levy, for appellant: It was error for the trial court to rule that the alleged oral agreement of extension of the time of delivery under the original contract was not void under the Statute of Frauds. Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366, 6 Sup. Ct. Rep. 12; 1 Williston, Contr. § 594; 2 Williston, Sales, 2d ed. § 122, p. 239; Clark v. Fey, 121 N. Y. 470, 24 N. E. 703; Hill v. Blake, 97 N. Y. 216; Imperator Realty Co. v. Tull, 228 N. Y. 454, 127 N. E. 263; A. Sidney Davison Coal Co. v. Weston, D. & Co. 209 App. Div. 517, 205 N. Y. Supp. 49; Morris v. Baron [1918] A. C. 1, 9 B. R. C. 399, Ann. Cas. 1918C, 1197 -H. L.; Maddaloni Olive Oil Co. v. Aquino, 191 App. Div. 51, 180 N. Y. Supp. 724; Charles Albert Co. v. Newtown Creek Realty Corp. 211 App. Div. 4, 206 N. Y. Supp. 673. Respondent's contention that the provision of the contract of August 12, 1920, which provided for "delivery beginning week of August 16th," authorized a tender of delivery thereunder of 3,500 skins two months later, either on the theory that such tender was made within a reasonable time or because of an alleged custom in the trade, is unsound. Vedder v. Fellows, 20 N. Y. 126; Avery v. New York C. & H. R. R. Co. 121 N. Y. 44, 24 N. E. 20; Walls v. Bailey, 49 N. Y. 464, 10 Am. Rep. 407; Rickerson v. Hartford F. Ins. Co. 149 N. Y. 307, 43 N. E. 856; Cassin v. Stillman, D. F. Co. 185 App. Div. 63, 172 N. Y. Supp. 754; McDonald v. Acker, M. & C. Co. 192 App. Div. 123, 182 N. Y. Supp. 607; Ford v. Snook, 205 App. Div. 194, 199 N. Y. Supp. 630; E. M. Kane Co. v. Jaretzki, 119 Misc. 419, 196 N. Y. Supp. 791. The court erred in charging the jury, in substance, that if Jules Star & Company, unreasonably withheld their approval of the 6,000 skins which were the subject of the second contract, whether the defendant had anything to do with such disapproval or not, the plaintiff could nevertheless recover. 2 Williston, Contr. p. 1525; Fudickar v. Guardian Mut. L. Ins. Co. 62 N. Y. 392; Re Wilkins, 169 N. Y. 494, 62 N. E. 575; Wilhelm v. Wood, 151 App. Div. 42, 135 N. Y. Supp. 930; D. Goff & Sons v. Rheinauer, 199 App. Div. 617, 192 N. Y. Supp. 92; Kihlberg v. United States, 97 U. S. 398, 24 L. ed. It was error to admit in evidence the bid by defendant on the 3,500 skins tendered under the alleged oral extension agreement of the first contract, and the telegram from Jules Star & Company to Severin, for the purpose of establishing a conspiracy between defendant and Star for the rejection of the skins tendered under the second contract. Ross v. Ackerman, 46 N. Y. 210; Booth v. Powers, 56 N. Y. 22; Dorwin v. Westbrook, 86 Hun, 363, 33 N. Y. Supp. 449; McLoghlin v. National Mohawk Valley Bank, 139 N. Y. 514, 34 N. E. 1095; People v. Sharp, 107 N. Y. 427, 1 Am. St. Rep. 851, 14 N. E. 319; People v. Molineux, 168 N. Y. 264, 62 L.R.A. 193, 61 N. E. 286; Mance v. Hossington, 205 N. Y. 33, 98 N. E. 203; Re Paul Jones & Co. 117 App. Div. 775, 102 N. Y. Supp. 983; People v. McLaughlin, 150 N. Y. 385, 44 N. E. 1017; 22 C. J. § 835. Messrs. Eugene W. Leake and Edward A. Craighill, Jr., with Messrs. Breed, Abbott, & Morgan, for respondent: Proof of the oral agreement with regard to the time for delivery of the balance of the skins due under the first contract was properly admitted. Imperator Realty Co. v. Tull, 228 N. The oral agreement was not an alteration of any term of the original contract. It was merely an expression of the understanding of the parties as to what should be deemed a reasonable time. Gumbinsky Bros. Co. v. Smalley, 203 App. Div. 661, 197 N. Y. Supp. 530, affirmed in 235 N. Y. 619, 139 N. E. 758; Portfolio v. Rubin, 196 App. Div. 316, 187 N. Y. Supp. 302, affirmed in 233 N. Y. 439, 135 N. E. 843; Lowinson v. Newman, 201 App. Div. 266, 194 N. Y. Supp. 253; 27 C. J. 331; Beakes v. Da Cunha, 35 N. Y. S. R. 564, 12 N. Y. Supp. 351, affirmed in 126 N. Y. 293, 27 N. E. 251; Eppens, S. & W. Co. v. Littlejohn, 164 N. Y. 187, 52 L.R.A. 811, 58 N. E. 19. Plaintiff having relied and acted upon the oral agreement, defendant was estopped from asserting that the tender was not made within the time fixed by the contract. Thomson v. Poor, 147 N. Y. 402, 42 N. E. 13; Arnot v. Union Salt Co. 186 N. Y. 501, 79 N. E. 719; Imperator Realty Co. v. Tull, 228 N. Y. 447, 127 N. E. 263; Holden v. Efficient Craftsman Corp. 234 N. Y. 437, 138 N. E. 85; Lieberman v. Templar Motor Co. 236 N. Y. 139, 29 A.L.R. 1089, 140 N. E. 222. The Statute of Frauds having been satisfied by defendant's acceptance and actual receipt of part of the skins and payment therefor, neither the original contract nor a subsequent modification thereof was required to be in writing. Van Woert v. Albany & S. R. Co. 67 N. Y. 538; H. W. Paine & Co. v. Manistee Tanning Co. (C. C. A. 6th) 279 Fed. 340; Meyers v. Kaufman, 110 Misc. 321, 180 N. Y. Supp. 403; Packer v. Steward, 34 Vt. 127; Bronis v. Grafton Light & P. Co. 156 N. Y. Supp. 1106. Appellant's futile attempt to establish a custom, which it improperly charges to respondent, and the conflicting inferences from the undisputed facts, required the submission to the jury of the question whether the 3,500 skins under the first contract were tendered within a reasonable time. Vedder v. Fellows, 20 N. Y. 126; Avery v. New York C. & H. R. R. Co. 121 N. Y. 44, 24 N. E. 20; Eppens, S. & W. Co. v. Littlejohn, supra; Pierson v. Crooks, 115 N. Y. 539, 12 Am. St. Rep. 831, 22 N. E. 349; Schnitzer v. Lang, 239 N. Y. 1, 145 N. E. 65; Greacen v. Poehlman, 191 N. Y. 493, 84 N. E. 390, 14 Ann. Cas. 329; McCarty v. Natural Carbonic Gas Co. 189 N. Y. 40, 13 L.R.A. (N.S.) 465, 81 N. E. 549, 12 Ann. Cas. 840. The jury were properly instructed as to the legal effect of the contract provision requiring the approval of Jules Star & Company. Bowery Nat. Bank v. New York, 63 N. Y. 336; Vought v. Williams, 120 N. Y. 253, 8 L.R.A. 591, 17 Am. St. Rep. 634, 24 N. E. 195; Thomas v. Stewart, 132 N. Y. 580, 30 N. E. 577; MacKnight Flintic Stone Co. v. New York, 160 N. Y. 72, 54 N. E. 661; Nolan v. Whitney, 88 N. Y. 648; Smith v. Wetmore, 41 App. Div. 290, 58 N. Y. Supp. 402; Crane Elevator Co. v. Clark, 26 C. C. A. 100, 53 U. S. App. 257, 80 Fed. 705; Bush v. Jones, 6 L.R.A. (N.S.) 774, 75 C. C. A. 582, 144 Fed. 942. There was no error in the reception in evidence of the bid and telegram. Baird v. Daly, 68 N. Y. 547; Mayer v. People, 80 N. Y. 364; Spaulding v. Keyes, 125 N. Y. 113, 26 N. E. 15; People v. Peckens, 153 N. Y. 576, 47 N. E. 883; People v. Dolan, 186 N. Y. 4, 116 Am. St. Rep. 521, 78 N. E. 569, 9 Ann. Cas. 453; Castle v. Bullard, 23 How. 172, 16 L. ed. 424; Holmes v. Goldsmith, 147 U. S. 150, 37 L. ed. 118, 13 Sup. Ct. Rep. 288; 27 C. J. 52; White v. Benjamin, 150 N. Y. 258, 44 N. E. 956. Lehman, J., delivered the opinion of the court: On or about August 12, 1920, the plaintiff and the defendant entered into a contract for the sale of 15,000 vealskins, delivery thereof to be made "beginning week of August 16th." The contract was made upon condition that the skins were "to be received by Jules Star & Co.'s representative subject to their approval." On September 10, 1920, the parties entered into another contract for the sale of 6,000 vealskins, delivery to be made in September, "to be received by Jules Star & Co. subject to their approval." On or about August 16th a representative of Jules Star & Co. examined 15,000 vealskins tendered by the plaintiff in performance of its contract of sale of August 12th, and rejected 3,500 of such skins. It is not disputed that such rejection was justified. In October the plaintiff notified the defendant that it was ready to deliver 3,500 skins in substitution for those previously rejected. The defendant refused to accept or even examine the same on the ground that the time for delivery had expired. About the same time, Jules Star & Co. rejected the entire quantity of 6,000 skins which the plaintiff tendered in attempted performance of its contract of September 10, 1920, and defendant refused to accept them. The plaintiff has brought this action to recover damages suffered be (242 N. Y. 425, 152 N. E. 250.) cause of the defendant's refusal to accept the skins which plaintiff offered to deliver. In the first cause of action for failure to accept the 3,500 skins under the contract of August 12, 1920, the plaintiff alleges that at or about the time of the delivery to defendant of 11,500 skins in August "it was mutually agreed between the plaintiff and defendant that the time for delivery of the remaining 3,500 vealskins called for by said Exhibit A should be extended until such time as plaintiff, in the usual course of its business, should have collected that number of its skins." In the second cause of action as amended at the trial the plaintiff alleged that any condition for approval by a representative of Jules Star & Co. of the skins to be delivered under the contract of September 10th was waived and excused because the approval was unreasonably withheld, and because defendant prevented Jules Star & Co. from giving such approval and "because defendant and said Jules Star & Co. wrongfully and knowingly colluded to withhold that approval, with intent to avoid defendant's having to accept the said skins." The issues raised by the denial to these allegations were submitted to the jury and decided in favor of the plaintiff. The alleged agreement set forth in the first cause of action to extend the time for the delivery of 3,500 skins in substitution for those rejected under the first cause of action was not in writing, and it is urged that consequently it was unenforceable under the statute of frauds. The alleged conversation could not result in the substitution of a different time for delivery of the vealskins from that which had been agreed upon in writing. The statute of frauds would render an oral agreement changing any term of the written contract ineffectual. Imperator Realty Co. v. Tull, 228 N. Y. 447, 127 N. E. 263; A. Davison Coal Co. v. Weston, D. & Co. 209 App. Div. 514, 517, 205 N. Contracts parol extension -validity. Y. Supp. 49, affirmed in 240 N. Y. 705, 148 N. E. 767. Nevertheless such conversation may not be entirely disregarded. The written contract provided for deliveries "beginning week of August 16th.' The conversation at least evidences that the parties understood that, under the provision of the contract that deliveries should be made "beginning week of August 16th," the plaintiff should have a reasonable time to complete Evidencedelivery of skins time to deliver which Jules Star & skins. Co. would accept, though approval had been withheld from some skins previously tendered. In that aspect the conversation might have the effect of placing a limit upon what would constitute reasonable time as understood by the parties. Eppens, S. & W. Co. v. Littlejohn, 164 N. Y. 187, 52 L.R.A. 811, 58 N. E. 19. The intention of the parties as set forth in the written contract as to whether or not the seller should have a reasonable time to substitute other skins for those rejected seems under the cireumstances of the case for jury. Trial-question to present a question of fact. Even if that question is resolved against the seller, it does not follow that the buyer could not waive or elect not to take advantage of a partial breach resulting from failure to tender the full quantity of satisfactory skins, or that the conversation could Evidencenot be proven to upon question show such election. of election. If the seller under the contract was obligated to deliver 15,000 skins subject to the approval of Jules Star & Co. without right of substitution for rejected skins, the buyer, of course, had the right to refuse to accept skins tendered after the original tender of 15,000 skins. He was not bound to do so. He might still choose to keep the contract alive in order to enable the seller to make delivery of the full stipulated number of approved skins. If the conversation was had as alleged, it shows that the buyer did elect to keep the contract alive in spite of known excuse justifying refusal to proceed further. The seller concurred in that election, and thereafter the Sale-effect of waiver of breach. could buyer not assert that excuse as a reason for rejection. Williston, Contr. §§ 687, 688. We have recently pointed out that "sometimes distinction between a waiver of default, or an extension of the time for performance, and acts which enlarge definition of a 'reasonable time' as contemplated by the parties beyond the limits which might otherwise be set, is tenuous." A. B. Murray Co. v. Lidgerwood Mfg. Co. 241 N. Y. 455, 150 N. E. 514. Here the conversation may not result in extension of time for delivery; it may result in waiver of right to regard the contract as no longer in force after partial failure to perform by the seller, and thereafter the seller could not be again placed in default until reasonable opportunity is afforded for performance. Even though evidence was properly admitted as to the alleged conversation in regard to the delivery of the 3,500 skins which constitute the subject-matter of the first cause of action, there must be a new trial because in other respects error has crept into the record. We have pointed out that under both contracts sued upon the seller agreed to make delivery subject to the approval of Jules Star & Co. The parties chose to stipulate that such approval must be given. It constitutes a condition which, unless waived or excused, must be fulfilled before the buyer can be compelled to accept skins that are tendered. Concededly, approval of Jules Star & Co. has not been given. -subject to approvalcondition. waived also in regard to the contract which forms the basis of the second cause of ac- -condition tion if refusal of -waiver by approval by Jules bad faith. Star & Co. was the result of bad faith on the part of Jules Star & Co. in which the defendant had some share. If by its own interference and wrong the defendant prevented the plaintiff from obtaining the stipulated approval, then the plaintiff may recover without it. We have pointed out that in the second cause of action the plaintiff has pleaded that pleaded that the condition was waived and excused, not only because of wrongful act on the part of the defendant, but because approval was "unreasonably withheld," and the serious question raised upon this appeal is whether the plaintiff may recover under its contract upon proof that it offered to deliver skins which in quality complied with the contract requirements, and that the representative of Jules Star & Co. unreasonably withheld its approval of these skins. The trial judge charged that if "approval was unreasonably withheld, whether Barnet had anything to do with it or not, the plaintiff could recover. Star must have acted honestly. If he showed an honest judgment the defendant is entitled to a verdict." Though the parties have stipulated that the approval of Jules Star & Co. must be obtained for any skins delivered under the contract, under the rule laid down in the charge the plaintiff may become liable for damages if he insists upon this stipulation being carried out. It places upon the buyer the risk of determining whether Jules Star & Co. have acted reasonably; it makes the buyer determine whether approval should reasonably have been given, though not he but Jules Star & Co. was to approve of the quality of the skins. In effect it makes the buyer a guarantor of both the honesty and the good judgment of Jules Star & Co. It is said that authority for the rule laid down in the charge may be |