181 A.D. 207 | N.Y. App. Div. | 1917
On April 11, 1916, plaintiff made a written contract to sell the defendant from 200 to 300 tons of No. 1, heavy melting steel scrap at sixteen dollars per gross ton, f. o. b. Elmira, N. Y. The scrap was in the yard of D. & H. Rubin in the city of Elmira, from whom the plaintiff had purchased the same, and the 200 to 300 tons specified in the contract with defendant was an estimate of the quantity in the yard of Rubin. The defendant, doing business in Rochester, resold the steel scrap to a concern in Buffalo, and the plaintiff was aware when he made his contract with the defendant that the latter had sold or expected to resell the same on the strength of its contract with him. The contract between the plaintiff and the defendant contained the provision: “ Shipment to be made prompt.”
On May third, plaintiff shipped one carload containing 56,300 pounds, for which the defendant paid. On May fifth another carload containing 55,500 pounds was shipped, for which the defendant has not paid. Presumably these shipments were made directly from Elmira to the defendant’s vendee in Buffalo. No other shipments were made. On May thirteenth the defendant canceled the contract because of delayed delivery.
The parties also made a separate contract whereby the plaintiff sold to the defendant not more than twenty tons of burnt annealing pots, at sixteen dollars per gross ton, f. o. b. Elmira, the contract providing, “ shipping instructions when the material is ready to be loaded.” There was no other provision as to the time when this material should be shipped.
The trial justice held that the plaintiff was not in default in the delivery of either the steel scrap or the annealing pots, and awarded the plaintiff a judgment for $396.43, being the unpaid purchase price of the carload of the steel scrap shipped on May fifth, and for $504 damages because of defendant’s refusal to accept the balance of the steel scrap, and for $184.68 damages because of the defendant’s refusal to accept the annealing pots, amounting in all, with interest, to $1,132.85.
We think the learned .trial justice was in error in his conclusion that the defendant wrongfully refused to accept the steel scrap. The contract for this called for prompt shipment. This means expedition and admits of less delay than would be permissible under a contract of delivery within a reasonable time. (Tobias v. Lissberger, 105 N. Y. 404, 410, 412; Binger Company v. Blumberg, 76 Misc. Rep. 432.) The defendant alleges in its answer that in the scrap metal business, shipments under contract specifying prompt shipment must be made within thirty days and that it was the intention of the parties herein that the property should be so shipped. We shall, therefore, assume that the plaintiff had until May eleventh, thirty days after the contract was made, to ship the steel scrap, although it is very clear from the evidence that it might all have been shipped within a much shorter period.
On April twentieth plaintiff wrote the defendant for shipping instructions for the steel scrap. On April twenty-fourth defendant wrote the plaintiff that it had sent the shipping instructions to Elmira, and said in the letter as follows: “We must impress upon you the necessity-of making prompt shipment of the heavy melting steel purchased, as conditions are very uncertain, and if our parties cancel our contract we shall, of necessity, be compelled to cancel yours. We merely
The trial justice properly held the defendant liable for the purchase price of the carload of steel scrap which was shipped May fifth, and for which the defendant has not paid (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 125, subd. 1, as added by Laws of 1911, chap. 571), and for damages for not accepting the annealing pots. Those were duly tendered by the plaintiff and refused by the defendant, probably for the reason that it considered, that the plaintiff’s breach of contract in respect to the steel scrap constituted a sufficient reason for the rejection of the annealing pots. But the contracts are separate and each must be considered without reference to the other.
The defendant alleges a counterclaim because of the plaintiff’s failure to deliver the steel scrap. It had resold the same with reference to the plaintiff’s contract as the latter well knew and the vendee of defendant rescinded the contract
The judgment should, therefore, be modified by deducting therefrom the items of $504 and $134, with the appropriate interest.
Judgment modified by deducting therefrom $638, with interest, and as so modified unanimously affirmed, without costs.