2 N.Y.S. 869 | N.Y. Sup. Ct. | 1888
The verdict was recovered for the price of 10,000 blue Welsh fire brick with interest thereon. The brick were imported from Liverpool by S. L. Merchant & Co., under an order given to them
“New York, Feb. 20, 1886.
“ Messrs. S. L. Merchant & Co., 25 State St. :
“Gentlemen. — I will take 10 M blue Welsh fire brick at $24 per thousand upon the opening of navigation on the Hudson. Let me know if my order is accepted, and oblige,
“Tours, etc.,
“ F. O. NORTON, PN
To that Merchant & Oo. replied in the following manner :
“New York, 2, 23d, 1886.
“ F. O. Norton, 92 IP way, Oity :
“ Dear Sir. — We are much obliged for your order of Feb. 20th for 10,000 blue Welsh fire brick at $24 per thousand on dock at New York city upon opening of navigation. We will execute theorder.
“ Yours truly,
“ S. L. MERCHANT & CO., K.” ■
And added to this reply, in the form of a postscript, the ifiquiry when navigation opened on the Rondout canal; and to that Norton sent this reply:
*251 “New York, 2ith Feb., 1886.
“ S. L. Merchant & Co., 25 State St., Oity:
“ Gentlemen. — In reply to your letter of 23d inst., would say , that the Rondout canal will be open on or about the 1st of April.
“Yours truly,
“F. O. NORTON.”
The objection to this correspondence as a contract is placed upon the statement, in the reply of Merchant & Co. to the defendant’s proposal, that the brick should be delivered on the dock in New York city. That delivery was not, in words, made a part of the defendant’s offer; and, for that reason, it has been urged that their addition created a different proposal instead of an unqualified acceptance of that made by the defendant, and, therefore, required acceptance by him to make it a binding contract. But it is to be inferred, as these parties were engaged in the business, and understood the source from which the brick would be obtained, that they would be unladen upon a dock in the city of New York, in perform-' anee of the proposal made by the defendant, even if no reference had been made to that fact by the answer of Merchant & Co. The brick, under the proposal, were to be delivered upon the opening of navigation on the Hudson, and that delivery, without anything more being said upon the fact, would be made, in the natural and ordinary course of business, upon a dock on the Hudson river. And such is the rule which has been followed by the courts concerning the delivery of goods to arrive from abroad. (Angelí on Carriers [5th ed.], 309-312.) The reply of the defendant to the answer of Merchant & Oo. also inferential!y discloses that to have been his understanding of the proposal which was made, for that reply was written and sent' upon the evident conclusion that the brick, under the agreement as it was proposed by him, were to be delivered on a dock at New York city. For if that had not been his understanding of his own proposal, something more would have been added to his reply on this subject expressive of his dissent from this landing. But, so far from doing that, his final reply simply answered the question concerning the opening of navigation, in language appearing to assume that he was to receive the brick under his proposal, in the manner mentioned in the answer of Merchant & Go.
This correspondence was such as to comply with these rules, and, therefore, to create a binding contract on the part of the defendant to receive and pay for the brick on their arrival at the port of New York, and their delivery upon the wharf on the opening of navigation on the Hudson ; and it appeared, as a fact, that this navigation was open on the thirty-first of March, when the brick arrived, and that the time had also arrived when the defendant himself declared that navigation would be opened on the Rondout canal, through which it was probably designed by him to take these brick. But, as the defendant refused to accept or receive the brick which were offered, the point is presented whether they were in the condition which the contract required them to be in to subject him to the obligation of receiving and taking the brick, and paying the price for them. At the time when the brick were unladen upon the wharf they were fourteen in number short of the contract quantity, and in the warehouse receipt, which was given on the sixth of April, when they were taken in store, it is stated that about one hundred of the brick were broken. When these brick were broken in this manner does not appear otherwise than by inference from the evidence. They do not seem to have been handled, or moved in any manner, after they were unladen from the steamer on the wharf until they were taken into the warehouse; and there is ground, therefore, for inferring, either that the brick were broken when they were laden on the steamer or in her transit across the ocean, or in their delivery from the steamer on the wharf. No intervening circumstance appears to have arisen which would account for the breaking of the brick in any other 'way, and they are stated to have been in this
As the case stood upon the proof, therefore the question arises whether the defendant was so placed in default by his refusal to receive and accept the brick as to render him liable for the purchase-price. The contract, it is to be remembered, was wholly executory between himself and Merchant & Co., and it was for them, under the law, to perform it according to its terms before the defendant
Upon this subject it has been correctly said that “ courts have no
Tbe defendant contended at tbe trial, and bis own evidence bad a tendency to prove, tbe correctness of bis position, that further time bad been given to him in which be could accept and receive tbe brick. But this was contradicted by Mr. Merchant, and tbe jury found tbe fact not to have been as tbe defendant stated it. There was, accordingly, no waiver whatever of bis right to insist upon a complete performance of tbe agreement, both as to quantity and quality of tbe brick; and when it appeared, as it did -by tbe plaintiff’s evidence, that Merchant & Co. bad not been in a condition to perform tbe agreement upon tbeir part, tbe conclusion legally followed that tbe defendant never became liable for the payment of tbe purchase-price of the brick. There bad been no waiver whatever of his right to insist upon a complete performance of the agreement; and when it appeared that Merchant & Co. could not perform it, and did not purpose to perform it as it bad been made, they failed to maintain their action for tbe recovery of the purchase-price, for at least atender of the property, as it was described in tbe contract, or an offer to deliver it to the defendant, was a necessary fact to entitle tbem to tbe payment of tbe purchase-price. No such tender was or could be made of tbe brick, and tbe defendant consequently was entitled, upon bis motion, to a dismissal of tbe complaint.
Tbe judgment should be reversed and a new trial ordered, with costs to tbe defendant to abide event.
Judgment reversed and new trial ordered, with costs to defendant to abide event.