Colonial Sugars Co. v. Durand

286 F. 499 | 7th Cir. | 1923

GEIGER, District Judge

(after stating the facts as above).' [1, 2] Did plaintiff default by refusing to deliver sugar to defendant when demanded? That question was answered as a matter of law, affirmatively, upon granting defendant’s motion for a directed verdict. Assuming that plaintiff, when requested by defendant, was bound to ship or deliver promptly, or with reasonable promptness, there is nothing whatever in the case fixing an obligation to deliver instanter. Therefore, without proof of categorical refusal to perform, a delay of one day from the 24th to the 25th, in complying with a delivery demand, could not be held, as matter of law, and in defiance of any proffered reasonable explanation, to be a refusal to perform, a repudiation of obligation, or a default upon which defendant was released from the contract. Further, upon the proofs as plaintiff "adduced them, the actual authority of the broker (discussed by the parties) in respect of making deliveries has no necessary relevancy in determining whether plaintiff refused delivery on January 24th. Such proofs are: That the July 2d contract for September shipment was modified to provide for shipment within reasonable time on defendant’s specifications; that from October 2d (when 1,200 bags were taken by defendant) to January 14th, plaintiff incessantly demanded performance, but was “put off” by defendant; that from January 14th to 20th plaintiff’s insistence — and threats — resulted in its tendering the “settlement” contract signed by it and promised to be signed by defendant; that ofi January 21st plaintiff formally notified defendant to give instructions within 24 hours; that under the contract of July 2d plaintiff could deliver from spot or from refinery at its option, payments in 7 days from “arrival of cars”; that if a reasonable time had elapsed on January 14th to 20th, defendant was then obliged to take all.of the remaining 1,80Q bags; that if, on the contrary, plaintiff was to be held to its “settlement contract,” the sugar became deliverable in three specified installments on “order” of defendant, “from spot stock now in Chicago,” payments, however, to be 7 days “from date of order.”

Therefore, assuming that the broker knew of these facts, what was his situation when, on the 24th, defendant, without previous response of any sort to the plaintiff’s demands, with the unsigned, but promised, settlement contract then still in his hands, makes written peremptory demand on the broker for “600 bags of Colonial sugar on our contract”? Was he seeking acceptance of an order for part of the 1,800 bags, all then due on the old contract, thereby to gain indefinite indulgence on the remainder; or was he in this manner (rather than by signing) attempting to give a belated “acceptance” of the “settlement contract”? Unless such contract was in effect, the broker could not have authority to deliver thereunder. But his treatment of the defendant, when demand was made, rather pointedly put it up to the latter to disclose whether the demand was made under the old or under the then (so far as the broker knew) unsigned new contract. Upon defendant’s silence, and in view of all that had transpired, was the broker, even assuming that he originally had authority to make deliveries under the old contract, then bound to assume that he still possessed it and was required to exercise it, instantly, at the peril of the plaintiff? Clearly, if the broker had no authority to exercise, defendant could not complain of the submission of the matter directly to plaintiff. But, if he had any authority, it did not include the power of determining whether the plaintiff was to act or to be bound under the one or under the other contract. Hence his conduct under the circumstances was dictated, not only by reason and prudence, but by the very policy of delay, silence, and equivocation pursued by the defendant. It was a perfectly normal consequence of defendant’s-own conduct, and affords no basis upon which to assert a refusal or default by plaintiff; nor does any allegation in the pleadings, or any other aspect of the proofs, foreclose plaintiff in that respect.

The judgment is reversed, and the cause is remanded for a new trial.