214 A.D. 245 | N.Y. App. Div. | 1925
The action was brought to recover damages for the refusal of the defendant to accept and pay for goods tendered by the plaintiff under a contract of sale. The plaintiff claimed the defendant should pay cash as he had exhausted his credit, and the defendant claimed there was no valid credit Hmitation. Hence the dispute was as to the terms of the contract.
On August 17, 1920, plaintiff’s employee, George C. Baker, the manager of its remnant department, called at the defendant’s place of business and received a written order for forty-two cases of Canton flannel for delivery, fourteen cases at once, fourteen cases thirty days later, and the balance in sixty days. The terms of credit were 2 /10 /60, f. o. b., which is conceded to mean a credit of sixty days after the delivery of each installment. The order also contained the sentence, “ Acknowledge receipt of order when shipment will be made.” Said® Baker indorsed on the copy of the order retained by the defendant, “ Accepted, O. K. G. C. Baker,” and received from the defendant a check for $1,000 on account. Four days later the plaintiff, before making any deliveries, wrote the defendant as follows:
“ We have not as yet received statement of your affairs which you promised to send us, and ask that you kindly forward it at once so that we can give immediate attention to your order.”
To this letter the defendant replied under date of August twenty-
“ Referring to your order No. 1676, calling for 42 cases Canton Flannel, 14 cases will be shipped at once, 14 in thirty days and the remainder in sixty days.
“ We have marked your account a limit of $3,000.00 on terms of 10-60, and as you have previously paid us $1,000.00 we will make the first shipment at once, which amounts to $4300.00 which will make your indebtedness slightly in excess of the limit agreed upon.
“We ask that you kindly make arrangements to anticipate at [sic] request at the time of the other shipments sufficient to keep your indebtedness at $3,000.00.”
The defendant testified that he replied to the above letter on August twenty-fifth, the day following, as follows:
“ Replying to your letter of the 24th inst., we will not agree to any changes of terms on our order # 1676. We must insist that you go ahead with this order as accepted by your Mr. Baker at my office on the 17th inst., together with the deposit of $1000 he accepted on this order.”
The plaintiff denied the receipt of this letter.
On August twenty-fifth fourteen cases of the goods were delivered to and accepted by the defendant. On September twenty-fourth the plaintiff wrote the defendant as follows:
“We have ready for delivery the second shipment of the Canton Flannel purchased by you. If you will kindly send us check for $4300 as agreed and thereby enable us to make shipment, and keep indebtedness at about your credit limit of $3000, it will be appreciated.”
The defendant replied that payment would be made in accordance with the contract, namely, 2 /10/60, to which the plaintiff résponded this was not in accordance with the contract, and it would' take whatever steps might be necessary to protect its interests.
On October fifth the second installment was tendered, and cash on delivery demanded. The defendant refused to accept the goods, and on October eighth plaintiff wrote defendant that the goods would be held for his account. To this letter the defendant replied as follows:
“ We are in receipt of your letter of the 8th inst.
“ We wish to advise you * * * that when your Mr. Baker accepted our order $ 1676, it was agreed at that time between Mr. Baker and the writer that if, after we received the first shipment of 14 cases, we were not satisfied with the run of the goods, we were to retain and pay for that shipment, but that there would be
“ You xvdll therefore see that the agreement between your Mr. Baker and the writer, made in our office in the presence of a witness before the order was signed, made it a condition precedent to the inception of any contract for this material, that we were first to be satisfied with the run of the material in the 14 cases shipped us.
“We have completed checking the 14 cases received from you, and after careful examination, we are not satisfied with the run of this material at all. As agreed, however, we will retain this shipment and make payment for this lot according to the terms of your invoice, but for the above reason and in accordance with the terms of our agreement with your Mr. Baker, we will not accept any further quantities of this material.”
It may be noted here that the defendant in the above letter placed Ms objection on an untenable ground, namely, on a collateral parol agreement made prior to the entering into of the written contract, and also limited Ms rejection to that ground.
The plaintiff replied to said letter as follows: “By reason of your refusal to accept the balance of the goods under your order #1676 dated August 17th, 1920, for 42 cases of Canton Flannel, notice is hereby given you that we hereby elect to rescind the said contract and sale, and will sell the portion of the goods covered by said order wMch you refuse to accept and will look to you for the difference between the contract price and the proceeds of such sale.”
At the close of the case the court directed a verdict for the plaintiff, leaving to the jury only the amount of the damages, holding that the contract between the parties consisted of the letters as well as of the order. TMs ruling presents the main issue raised by the appeal, namely, whether the court should have directed a verdict for the plaintiff or left to the jury the issue as to the provisions of the contract m respect to terms of credit.
As noted, the defendant relies upon the written order, complete in itself and accepted by the manager of the plaintiff’s remnant department, wMch order provided for payment sixty days after the delivery of each installment. The plaintiff, on the other hand, claims that this apparently complete contract was subject to a limitation of credit to $3,000, and that over and above that sum the defendant should pay cash for the goods delivered under the order, amounting approximately to $12,000, of which $1,000 had been paid on account. In brief, the contention of the plaintiff is that the method of doing business in use by the plaintiff was that
It cannot be said, however, that the only ■ inference which a jury reasonably might draw from the above facts is that there was a conditional acceptance of the order, and, therefore, an issue was presented which required a submission of the case to the jury. Also there are other issues of fact incidentally involved, such as whether, in the event it was found that the original acceptance was absolute, the plaintiff’s- agent Baker had authority in fact, or was so held out by the plaintiff as to bind the latter by his acceptance of the order.
As already noted, when the plaintiff tendered the goods and demanded payment on delivery, the defendant in rejecting the goods in writing placed his reason for the rejection solely on the ground of imperfections in the goods already delivered, and an alleged collateral agreement that he might on that ground reject the balance, and it is claimed that the defendant thereby waived any right to object to the demand of cash on delivery which
In the case at bar the proof of waiver was received over the objection and exception of the defendant, and one of the grounds upon which the plaintiff’s motion for the direction of a verdict was based was “ that the defendant rejected this order specifically and particularly upon the ground that they had a right to do so because of the unsatisfactory character of the fourteen cases which they paid for; and that they never at any time offered to receive those goods in conformity with the alleged claim of the defendant that they were to be paid for on terms.” In case it should be found that under the contract defendant was entitled to a tender of the goods on credit, plaintiff was obligated to make such a tender. Then plaintiff, having pleaded due performance and not having pleaded a waiver, failed in proving the cause of action alleged in the complaint.
It follows that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., Dowling, Merbell and Burr, JJ., concur.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.