Bailey, J.
The jury, by their verdict, have necessarily found that by a modification of the contract between the parties, made in June, 1877, the defendant agreed to furnish the plaintiff with sewing machines, from and after July 1st, at the rate of ten per day, and that by a further modification made in September, the defendant agreed to furnish the plaintiff with such machines from and after September 15th, at the rate of one hundred per week. The first question presented for our consideration is, whether this finding is supported by the evidence.
Both parties agree that the original contract was modified in June, so as to provide that the plaintiff thereafter should take the machines sent by the defendant at a fixed price, pay his own expenses and retain for his compensation any profits he might be able to make by their sale. The plaintiff claims that the agreement to send him ten machines a day after July 1st, was a part of this modification. This new agreement, whatever it was, was made between the plaintiff and defendant orally, while the plaintiff was on a visit to New York. The plaintiff swears that, as a part of the new arrangement, the defendant agreed to send him machines at the rate of ten a day, while the defendant swears that no such agreement was made. Two other -witnesses then in the employ of the defendant, testify that they were present when the new contract was entered into, and heard the conversation between the parties, and that nothing was said in their presence about the defendant’s sending ten machines a day. The plaintiff, it is true, swears to various conversations between himself and the defendant in the course of the negotiations when these two witnesses were not present, in which this promise was made. Did the case rest solely upon the testimony of these witnesses, while we should be inclined to think that the preponderances would be in favor of the defendant, we might not regard the preponderance so clear as to justify a reversal of the judgment on that ground.
But there are various circumstances appearing in the record which, in our opinion, are strongly corroborative of the testimony of the defendant. Of the mass of letters from the plaintiff to the defendant in evidence, and especially those written after July 1st, a large proportion are filled with representations that the plaintiff was much beliind-hand in filling the orders from his customers for machines, and with solicitations and entreaties to the defendant to send machines more rapidly. Many of them contain serious complaints against the defendant for his tardiness in making shipments, and yet we fail to find in any of these letters any distinct allusion to an agreement on the part of the defendant to furnish a given number of machines, or any complaint that the defendant was remiss in the performance of his contract. If the defendant, in failing to send machines as fast as the plaintiff desired, was all the while violating the terms of an express agreement, it is certainly very extraordinary that the plaintiff, in his constant and pressing importunities for more machines, did not, in some way, place his demand upon the ground that he had a right under his contract to a larger number, or at least to remind the defendant of his contract obligations.
It further appears that no claim was made by the plaintiff for profits on sales of the machines which the defendant failed to furnish under this alleged contract, until some time after the refusal of the defendant to extend his contract for another term. On the contrary, the plaintiff rendered to the defendant periodically statements of his account, and in such statements there were no charges for such profits, nor were they accompanied by any suggestion that a claim would ever be made by the plaintiff therefor. At the time the contract expired the plaintiff’s books of account agreed precisely with those of the defendant, both showing a balance in the defendant’s favor of $1,300.68. When the parties met in Hew York in January, 1878, the defendant rendered to the plaintiff a statement of account showing this balance, and the plaintiff, without objecting to any part of it, or claiming any reduction or set-off, by reason of the failure of the defendant to perform his contract, gave the defendant his check for $300 to apply upon said balance. These facts are wholly inconsistent with the theory that there was then outstanding a claim in favor of the plaintiff, growing out of these very dealings, sufficient not only to cancel the balance against him on his and the defendant’s books, but also to create a balance in his favor of $2,483.32, the amount found by the jury. In our opinion, the evidence on the question as to whether the alleged contract to furnish the plaintiff with ten machines per day was ever made, when viewed in the light of surrounding circumstances, and especially of the plaintiff’s own conduct, so strongly preponderates in favor of defendant, that the verdict of the jury ought not to stand.
Much that we have already said applies with equal force to the evidence of the alleged agreement of September 15th, to furnish one hundred machines per week. The conduct of the defendant throughout was inconsistent with the theory that any such agreement ever existed. But the direct evidence here is, as it seems to ns, much weaker than that introduced in support of the other agreement. As before, we have the evidence of the plaintiff and defendant directly in conflict. The plaintiff’s account of the making of this modification of the.contract, as given by him in his direct testimony, is in the following language: “ In September, when I told him I had an opportunity of taking another agency, that unless the machines came faster it would not pay me to run the business, he told me that, of course, increasing his facilities as soon as he could in the manufacture of them, he would give me all the machines I could sell; and he said there would be no doubt but that he could send me one hundred a week soon. That was the arrangement.” Here, manifestly, is no evidence of a promise, but 'a mere expression oí opinion or assurance on the part of the defendant of his ability and disposition to meet the plaintiff’s requirements, after having increased his facilities for manufacture. True, the plaintiff, in attempting on cross-examination, to re-state the same conversation, gives the defendant’s language as follows: EE I will send you a hundred a week after this;” but the force of this statement is greatly weakened by the widely different version of the same conversation given on direct examination.
But even assuming this to be sufficient evidence of a promise, we are unable to perceive any consideration therefor sufficient to make it binding upon the defendant. The plaintiff yielded up no right which he already possessed, and entered into no new engagement with the defendant.
There is, however, another ground upon which the defendant is, in our opinion, entitled to a reversal of the judgment. Even if it should be held that the evidence is sufficient to establish these agreements on the part of the defendant to furnish the plaintiff a stipulated number of machines per day or week, the defendant was, under the circumstances proved, excused from its performance. These agreements, as it is conceded, were entered into as mere modifications of the original contract, and the terms of that contract, so far as they remained unchanged, continued in force and binding upon the parties.
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Bailey, J.
The jury, by their verdict, have necessarily found that by a modification of the contract between the parties, made in June, 1877, the defendant agreed to furnish the plaintiff with sewing machines, from and after July 1st, at the rate of ten per day, and that by a further modification made in September, the defendant agreed to furnish the plaintiff with such machines from and after September 15th, at the rate of one hundred per week. The first question presented for our consideration is, whether this finding is supported by the evidence.
Both parties agree that the original contract was modified in June, so as to provide that the plaintiff thereafter should take the machines sent by the defendant at a fixed price, pay his own expenses and retain for his compensation any profits he might be able to make by their sale. The plaintiff claims that the agreement to send him ten machines a day after July 1st, was a part of this modification. This new agreement, whatever it was, was made between the plaintiff and defendant orally, while the plaintiff was on a visit to New York. The plaintiff swears that, as a part of the new arrangement, the defendant agreed to send him machines at the rate of ten a day, while the defendant swears that no such agreement was made. Two other -witnesses then in the employ of the defendant, testify that they were present when the new contract was entered into, and heard the conversation between the parties, and that nothing was said in their presence about the defendant’s sending ten machines a day. The plaintiff, it is true, swears to various conversations between himself and the defendant in the course of the negotiations when these two witnesses were not present, in which this promise was made. Did the case rest solely upon the testimony of these witnesses, while we should be inclined to think that the preponderances would be in favor of the defendant, we might not regard the preponderance so clear as to justify a reversal of the judgment on that ground.
But there are various circumstances appearing in the record which, in our opinion, are strongly corroborative of the testimony of the defendant. Of the mass of letters from the plaintiff to the defendant in evidence, and especially those written after July 1st, a large proportion are filled with representations that the plaintiff was much beliind-hand in filling the orders from his customers for machines, and with solicitations and entreaties to the defendant to send machines more rapidly. Many of them contain serious complaints against the defendant for his tardiness in making shipments, and yet we fail to find in any of these letters any distinct allusion to an agreement on the part of the defendant to furnish a given number of machines, or any complaint that the defendant was remiss in the performance of his contract. If the defendant, in failing to send machines as fast as the plaintiff desired, was all the while violating the terms of an express agreement, it is certainly very extraordinary that the plaintiff, in his constant and pressing importunities for more machines, did not, in some way, place his demand upon the ground that he had a right under his contract to a larger number, or at least to remind the defendant of his contract obligations.
It further appears that no claim was made by the plaintiff for profits on sales of the machines which the defendant failed to furnish under this alleged contract, until some time after the refusal of the defendant to extend his contract for another term. On the contrary, the plaintiff rendered to the defendant periodically statements of his account, and in such statements there were no charges for such profits, nor were they accompanied by any suggestion that a claim would ever be made by the plaintiff therefor. At the time the contract expired the plaintiff’s books of account agreed precisely with those of the defendant, both showing a balance in the defendant’s favor of $1,300.68. When the parties met in Hew York in January, 1878, the defendant rendered to the plaintiff a statement of account showing this balance, and the plaintiff, without objecting to any part of it, or claiming any reduction or set-off, by reason of the failure of the defendant to perform his contract, gave the defendant his check for $300 to apply upon said balance. These facts are wholly inconsistent with the theory that there was then outstanding a claim in favor of the plaintiff, growing out of these very dealings, sufficient not only to cancel the balance against him on his and the defendant’s books, but also to create a balance in his favor of $2,483.32, the amount found by the jury. In our opinion, the evidence on the question as to whether the alleged contract to furnish the plaintiff with ten machines per day was ever made, when viewed in the light of surrounding circumstances, and especially of the plaintiff’s own conduct, so strongly preponderates in favor of defendant, that the verdict of the jury ought not to stand.
Much that we have already said applies with equal force to the evidence of the alleged agreement of September 15th, to furnish one hundred machines per week. The conduct of the defendant throughout was inconsistent with the theory that any such agreement ever existed. But the direct evidence here is, as it seems to ns, much weaker than that introduced in support of the other agreement. As before, we have the evidence of the plaintiff and defendant directly in conflict. The plaintiff’s account of the making of this modification of the.contract, as given by him in his direct testimony, is in the following language: “ In September, when I told him I had an opportunity of taking another agency, that unless the machines came faster it would not pay me to run the business, he told me that, of course, increasing his facilities as soon as he could in the manufacture of them, he would give me all the machines I could sell; and he said there would be no doubt but that he could send me one hundred a week soon. That was the arrangement.” Here, manifestly, is no evidence of a promise, but 'a mere expression oí opinion or assurance on the part of the defendant of his ability and disposition to meet the plaintiff’s requirements, after having increased his facilities for manufacture. True, the plaintiff, in attempting on cross-examination, to re-state the same conversation, gives the defendant’s language as follows: EE I will send you a hundred a week after this;” but the force of this statement is greatly weakened by the widely different version of the same conversation given on direct examination.
But even assuming this to be sufficient evidence of a promise, we are unable to perceive any consideration therefor sufficient to make it binding upon the defendant. The plaintiff yielded up no right which he already possessed, and entered into no new engagement with the defendant.
There is, however, another ground upon which the defendant is, in our opinion, entitled to a reversal of the judgment. Even if it should be held that the evidence is sufficient to establish these agreements on the part of the defendant to furnish the plaintiff a stipulated number of machines per day or week, the defendant was, under the circumstances proved, excused from its performance. These agreements, as it is conceded, were entered into as mere modifications of the original contract, and the terms of that contract, so far as they remained unchanged, continued in force and binding upon the parties. One of the terms of the original contract which was not changed or set aside by the newagreements,wastlieone requiring the plaintiff to sell the machines for caslx and make pi’ompt remittance of the proceeds to the defendaxxt. This was the mode in which the plaintiff uxxdertook to perform the busixxess of his agency, aixd his right to call xxpoix tlxe defendant to consign to him machines for sale, depended upon the fidelity with which he adhered to that mode in the transaction of said business.
The evidence shows very conclusively that the plaintiff came far short of selling machines for cash and making prompt remittances of the proceeds to the defendant. It appeal’s that during the entire year, he received ordex-s from his customers for machines more rapidly than he could fill them, so that the machines were almost uniformly sold by him as soon as received, yet nearly all the time he was largely in arrears and indebted to the defendant. Thus, on the 1st day of July, he was owing the defendant $1,064; on the 1st day of September, $1,938.05; on the 1st day of October, $2,077.27, and on the 6th day of Hovember, $2,714.62. At the expiration of the contract, this indebtedness had been reduced to $1,306.68. While it is true that these several balances include the value of machines on hand and in transitu, it is apparent that lai’ge sums were continxxally owing on account of machines sold and delivered, but for which the proceeds had not been remitted.
. The defendant’s letters to the plaintiff are replete with complaints of the plaintiff’s tardiness in remitting the proceeds of sales, and with urgent appeals to him to send forward the money, and thus reduce his account. In several letters the defendant bases his refusal to forward machines more rapidly, upon the defendant’s failure to remit according to his contract, and upon the lai’ge amount of his indebtedness already accumulated.
It appears that the plaintiff, at the time lie commenced to do business for the defendant, was a man entirely without means or pecuniary responsibility. The defendant’s only safety in dealing with a man thus situated, was in insisting upon cash sales and prompt remittances. The plaintiff’s agreement in that behalf was of the very essence of the contract. It would be singularly inequitable, under these circumstances, to hold the defendant bound to continue the consignment of machines to the plaintiff, to the full extent of the contract, while the plaintiff'was refusing or neglecting to account for and turn over the proceeds of his sales as provided by the same contract.
We are of the opinion, then, that the verdict of the jury was unwarranted by the evidence, and the judgment will accordingly be reversed and the cause remanded.
Judgment reversed.