4 N.Y.S. 18 | N.Y. Sup. Ct. | 1889
This action was brought for damages alleged to have been sustained by the defendant’s failure to take and pay for 500 tons of old iron “T” rails sold to him by the plaintiff. The contract is as follows:
“New York, Dec. 29, 1879.
“John Fey, Esq.—Dear Sir: We have this day sold you old iron ‘ T’ rails on the following terms, viz.:
“Quantity. Five hundred (500) tons of 2,240 pounds each.
“ B ran d. (Accepted, John F ey.)
“Quality.
“Price. ($37.50) Thirty-seven dollars and fifty cents per ton of 2,240 lbs.
“ Delivery. Shipment from the other side, January, February, March, seller’s option.
“Payment. Thirty-two ($32.50) dollars and fifty cents cash, according to invoice weights on handing order on vessels, balance on handing weigh-master’s return. After naming vessels, the sellers shall not be responsible for non-arrival of cargoes, and this contract shall be considered canceled to that extent. Yours, faithfully, Clark, Post & Martin.”
The complaint contains the necessary facts to show the existence of a cause of action, and, among other averments, that the defendant accepted the iron in June, 1880, but requested the plaintiff to hold it in store for his account, cost, and risk, and to extend the time for payment, and for the actual manual delivery of the rails, and that this request was acceded to, and it was arranged that the rails so tendered should be held in store without any agreement for any fixed or definite time. The defendant, by his answer, denied that there was any other or different agreement than the contract for the purchase of the rails, or that the plaintiffs performed or tendered performance of the conditions of the contract on their part, or offered to deliver the rails. It appeared that the market for rails from December, 1879, up to the last of March following advanced to $45.50 a ton, and that the price was the highest from the 15th to the 20th of the last month named, when it began to decline gradually to $40 a ton, on the 10th of April. On the 15th of that month there was a very decided decline, reaching $23 to $24 a ton.
Mr. Post, on behalf of the plaintiffs, testified that from the 15th to the 20th of April the defendant called upon him at his office, and said that in consequence of the price of old rails falling from $45 to practically $23 a ton, it was
The case, therefore, is one in which a contract was made to ship during a certain period, viz., January, February, and March, a stated amount of iron; the shipment of which was not made during the period allowed for the purpose; and there was therefore no compliance with the terms of the contract. The case is regarded as embraced within the adjudication of Hill v. Blake, 97 N. Y. 216, upon which the dismissal of the complaint was mainly based, and as this is a decision of the court of last resort it may be entirely unnecessary to cite another authority. The court in that case said of a contract which required shipment in December, 1879, or January, 1880, seller’s option, that the omission to furnish the iron shipped in these months authorized the defendant to rescind the contract. And a similar decision can be found in Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12, in which the authorities bearing upon a kindred question are reviewed in extenso, and the case just cited is referred to. It was substantially held in that case that in a mercantile contract a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty or condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract, and that this applied even where the contract had been partially performed, and the goods accepted by the defendant in ignorance that there had been a failure of some shipments within the period allowed, if the right to rescind is exercised before accepting or paying for the additional merchandise. The learned counsel for the appellant sought ingeniously to distinguish between the contract in this case and that in Hill v. Blake,—of course, for his client’s benefit; but a critical examination of them has failed to disclose any substantial difference between them. It was supposed by the appellants that the subsequent agreement to which Mr. Post testified deprived the defendant of the right to a strict, compliance with the contract and of the right to rescind; the answer to which is that assuming the agreement to have been made it was within the statute of frauds, and not binding. On this proposition Hill v. Blake, supra, is also a decisive and controlling'adjudication. There it appeared that an offer was made in the shape of a letter sent to the defendant, the purport of which was that he could be given his iron out of a vessel named, probably in the week following the conversation, or a vessel named to sail from G-reat Britain during that month, to which Mr. Blake replied; “Well, I don’t want