180 A.D. 384 | N.Y. App. Div. | 1917
The action was brought to recover damages for breach of a contract whereby defendants agreed to deliver yarns to plaintiff to be' manufactured into bobbins' for the defendants. The contract is in writing. There are three contentions on behalf of the appellants that are raised upon this appeal: First, that the plaintiff having pleaded that she had duly and fully performed all the terms and conditions of the agreement on her part to be performed, except as hindered and prevented from so doing by reason of the fact that the defendants had not delivered at different times between the date of making the contract and the first day of November the full amount of cotton yarn called for by the contract; second, that the contract was rescinded by mutual consent on or about the 1st day of November, 1915; third, that the plaintiff has been allowed to recover for one year in excess of the terms of the contract. As to the appellants’ first contention: The contract provided that the defendants would deliver to the plaintiff 500 pounds of cotton yarn to be manufactured or wound into bobbins, and when the plaintiff had so increased her plant as to be able to manufacture 1,500 pounds of bobbins the defendants would so furnish the plaintiff at least 1,500 pounds of cotton yarn per week, which the plaintiff agreed to manufacture into bobbins, and to deliver at least 500 or 1,500 pounds of them, ready wound, per week, as the case might be. Under
Second. The question of the rescission of the contract by mutual agreement rested upon conflicting evidence and was properly a question of fact for the jury and was so submitted to them by the judge with a correct charge. The verdict cannot be said to be on this question against the weight of the evidence. Third. The court did err, however, in stating that this contract was for a term of two and one-half years. The contract provided that it was to commence April 1, 1915, and continue for one and one-half years and should be considered renewed for another year from the time that it expires, unless either party gave notice to the other party, in writing, at least two weeks before the expiration of the contract that they intended not to renew it. The court held that by reason of the failure of the defendants to give this notice in writing, the contract was automatically by its terms extended for the additional year. The defendants, however, breached the contract November 1, 1915, and refused to go forward with its performance, thereby giving the plaintiff notice, not alone that they did not intend to extend it, but they did not intend to perform it until its expiration. Therefore, the amount of damages assessed by the jury for the last twelve months must be deducted. The court charged the jury that if the entire amount of yarn had been delivered to the plaintiff she would have received for the entire period 161,209 pounds; that the plaintiff’s experts claimed that the net profit of manufacture on the lowest grade of yarn was ten cents per pound; that defendants’ experts testified that it was from two cents to four cents a pound. The jury evidently adopted four cents per pound as the measure of damages, or, multiplying 161,209 pounds by four cents, gives $6,448.36, and the verdict returned was for $6,416.50 or only $31.86 less, which is probably attributable to an error in calculation.
Clarke, P. J., Scott, Smith and Shearn, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event, unless plaintiff stipulate to reduce the verdict as stated in opinion; in which event the judgment as so modified and the order appealed from are affirmed, without costs. Order to be settled on notice.