Defendant had, at least, all of July 6 to deliver the spindles called for by the contract and plaintiff could not, on July 2, assume that defendant would be unable to perfor by July 6 even if it were subsequently proved, (which we do not think it was), that it could not. Indeed its open court offer seems never to have been withdrawn and it is to be hoped. that plaintiff will yet avail himself thereof.
Since the prematurity of the action appears on the face of the petition defendant might have demurred on that ground. But such a defect is not waived by failure to demur; it "is available at any stage of the proceeding" and may be raised by the court sua sponte even on appeal. It would surely be no kindness to plaintiff to render a judgement here, even if the evidence otherwise justified it, which the Court of Appeals would be obliged to reverse if the point were brought to its attention.
The set-offs pleaded by defendant are not, under a well settled rule this jurisdiction, available against plaintiff, who is a Japanese subject, excent to the extent of his recovery and as there can be none euch here they need receive no further attention.
Tt is accordingly considered and adindoed that nlaintif teke noth-me by his petition and defendant nothing by ite answer and that there be po allowance of costs to either party.
Text read from the printed page and cleaned; old type leaves the occasional error.