148 N.Y.S. 144 | N.Y. App. Div. | 1914
Lead Opinion
The plaintiff is a foreign corporation, and brings this action as vendor of aluminum to recover of the vendee the difference between the contract price and the market price at the time and place of delivery. The action is based upon a contract in writing made between the plaintiff by its agents and the defendants on the 22d day of September, 1910, by which the plaintiff through its agents agreed to sell twenty-five tons, long ton weight, British ingqt aluminum, guaranteed ninety-eight to ninety-nine per cent pure, at twenty-two and three-eighths cents per pound. The only provisions of the contract with respect to the place and manner of delivery are as follows: “Delivery: f. o. b. New York,” and the only provisions with respect to time of delivery follow immediately and are “ Shipment: As specified by buyers between October 1910 and April 1911.”
The contract next provides that the payments shall be in cash in New York funds fifteen days “from date of invoice.” It is further provided that the price was based on the then existing tariff and that in the event of a change in the tariff it should be modified accordingly; and that each delivery should be considered a separate contract, and that “ strikes, lockouts,
The plaintiff has recovered the difference between the contract price and the market price — eighteen cents per pound — of the aluminum at the city of New York on or about the 1st day of January, 1912, the market price at that time being eighteen cents per pound. The evidence also showed and the court found that the plaintiff was ready, willing and able to deliver the thirteen tons of aluminum to the defendant between the 31st day of December, 1911, and the month of November, 1912; that on the 3d day of January, 1912, plaintiff commenced an action in the Supreme Court of this State against the defendant to recover the purchase price, as fixed by the contract, of the remaining thirteen tons of aluminum; that issue was joined therein on the 9th of February, 1912, and the cause was on the calendar for trial in the month of June, 1912, and so remained until the eighteenth of November of that year when it was voluntarily discontinued; that in the month of May, 1912, the market price of aluminum in the city of New York began to advance above eighteen cents per pound and continued to advance until the months of October and Novem
In the view I take of this case it is not necessary to consider whether the plaintiff by bringing the action on the contract for the purchase price made an irrevocable election of remedies. I am of opinion that the plaintiff was not entitled to recover without alleging and proving delivery or a tender of delivery of the aluminum or a waiver thereof or facts excusing tender of delivery. It is quite clear, I think, that this was an executory contract, and that title to the aluminum did not pass to the defendant at the time the contract was made and would only pass by delivery (Wilson v. Empire Dairy Salt Co., 50 App. Div. 114, and cases cited), and it has been so regarded by the parties. Of course, delivery or tender of delivery might have been waived or excused; but there is no allegation or proof that it was. It has been held that tender of delivery is excused where it is prevented by the action of the vendee or by his failure to give necessary instructions to enable the vendor to tender delivery, as where neither the place nor manner of delivery is specified or by his repudiation of the contract. (Duryea v. Bonnell, 18 App. Div. 151; Hunter v. Wetsell, 84 N. Y. 549; Thedford v. Herbert, 135 App. Div. 174; Wester v. Casein Co. of America, 206 N. Y. 506; Weill v. American Metal Co., 182 Ill. 128; Kingman & Co. v. Hanna Wagon Co., 176 id. 545.)
It is contended on the part of the respondent that the plaintiff was under no obligation to deliver or to tender delivery until the defendant specified a time for delivery of the remaining thirteen tons of alum inum which concededly he never did. The parties did not undertake that the vendor need not ship the goods until it received shipping directions from the vendee. The provisions with respect to shipments earlier than the final date were for the benefit of the vendee, and he was required, not to give shipping instructions essential to enable the vendor to make a delivery, but to specify dates for delivery in so far as he might desire delivery before the 31st day of December, 1911. The vendor had the right, and I think that it was its duty, if it intended to hold defendant, to deliver or tender delivery of the remaining thirteen tons of aluminum on
It follows, therefore, that the judgment should be reversed, with costs to appellant, and the decision modified by eliminating therefrom the conclusions of law and substituting therefor a conclusion of law to the effect that the plaintiff has failed to establish a cause of action and that the defendant is entitled to judgment dismissing the complaint upon the merits, with costs, and granting judgment thereon as amended accordingly.
McLaughlin and Dowling, - JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented.
Dissenting Opinion
I understand the general rule to be that where the parties to a contract are severally under dependent obligations to concurrently do some act, as for instance, where delivery and payment are to be cotemporaneous, neither party can put the other in default without tender, offer or notice of readiness to perform. But as Professor Williston expresses it, “Where by the terms of the contract the defendant has not performed some condition precedent, it is enough for the plaintiff to allege that he was ready and willing; he need do nothing actively until the defendant has performed his prior obligation.” (Williston Sales, § 448. See, also, Id. § 457; Hunter v. Wetsell, 84 N. Y. 549.) Commonly these conditions precedent occur where the buyer is first to give instructions as to size, quality or quantity, or directions where or how to ship. (See 35 Cyc. 250, tit. Sales.)
I think the judgment was right and should be affirmed.
Ingraham, P. J., concurred.
Judgment reversed, with costs, and decision modified as indicated in opinion. Order to be settled on notice.