Schenectady Steel Co., Inc. v. Bruno Trimpoli General Const. Co., Inc.
Supreme Court of New York, Appellate Division
350 N.Y.S.2d 920 (1974)
Bruno Trimpoli General Construction Co. (Construction Co.) (defendant) hired Schenectady Steel Co. (Steel Co.) (plaintiff) to supply and erect steel for a state bridge project under a contract stating time was of the essence and requiring completion in 1968, but Steel Co. missed that deadline due to difficulties Construction Co. was aware of. Construction Co. sent letters in January and February 1969 demanding a delivery schedule or warning it would use another supplier and charge Steel Co. for the added cost, but Steel Co. never provided a schedule, and after its president visited the site on March 1 and found little progress, Construction Co. cancelled the contract on March 5; Steel Co. sued for the value of work performed, and the trial court, applying the UCC, ruled for Construction Co.
Whether, under an agreement in which time of delivery is essential, a buyer waives its right to cancel for late delivery by allowing the supplier to continue working past the deadline, where the buyer later threatens to use an alternative supplier if a delivery schedule is not provided.