50 N.Y.S. 251 | N.Y. App. Div. | 1898
Lead Opinion
This is an appeal from a judgment in favor of the defendants entered upon a verdict of a jury and from an order denying the plaintiff’s motion for a new trial. The action was brought to recover damages for the alleged breach of a contract for the sale of merchandise, such breach consisting in the refusal of the defendants
It appears that, at the city of New York, and on February 8, 1893, the plaintiff corporation and the defendants entered into a contract for the sale by the former and the purchase by the latter of 1,000 piculs of Oorinchie coffee, then, as the proof showed, stored at Padang, in Sumatra. The contract was signed for the plaintiff by its broker, T. W. Lewis, and was “ accepted ” by the defendants, ■who signed their firm name thereto. The material part of that contract is in these words :
“ Standard Contract.
“New York, Feby. 8, 1893.
“ Expected mark,
“ E. S. & w:
“ ‘ M.’
“ Sold for account of M. Eppens, Smith and Wiemann Co., to Mess. Littlejohn & Parsons, the sound and made sound portion of about (1,000) one thousand piculs picked Oorinchie Coffee (marks, numbers and name of vessel or vessels to be given as soon as known and before the arrival of the. coffee), to arrive and to be shipped per sailing vessel called the , from Padang, ■ bound for New York, at (27%) twenty-seven and half cents, gold,. per pound, basis of four months’ notes, bill to date, when the coffee is all in store.”
The blank spaces were in the contract as signed. It was shown that, upon its being signed, an order was forwarded to the agent of the plaintiff at Padang, but nothing was done in performance of the •contract or any of its terms until August, 1893, when the' plaintiff informed the defendants that the merchandise would come forward by a vessel called the Susanne. That vessel sailed' from Padang in November, 1893. In December, 1893, the plaintiff communicated to the defendants the numbers and marks of the packages. The
'No time for performance of this contract having been agreed upon between the parties, the law incorporates in it the term that it shall be performed within a reasonable time (Benj. Sales, § 683, and cases cited), and compliance with that term thus incorporated in the contract must be shown. If a specific time had been fixed by the parties, performance at or within that time would have to be proven. (Bowes v. Shand, L. R. [5 H. of L.] 28; Ledon v. Havemeyer, 121 N. Y. 179.) The same rule applies to performance within a reasonable time. It was held in Pope v. Terra Haute Car & Mfg. Co. (107 N. Y. 61) that where there is an executory contract for the sale and delivery of merchandise and no time is set for such delivery, the legal effect is to require the delivery to be made within a reasonable time ; and where suit is brought by the seller against the purchaser for the failure of the latter to take and pay for the goods, the plaintiff must allege in his complaint, and prove upon the trial, performance or offer to perform on his part within that reasonable time. Such proof is not made when only the dates at which the specific acts were done are given in "evidence. The question of reasonable' time becomes one of fact under the special circumstances of each case. "Where the contract expresses the time, tlie question of construction is for the court, but where it is left open, what is a reason
It seems to be conceded that the order given on the 8th of February, 1893, could not have reached Sumatra until the latter part of March. The defendants were not altogether ignorant of the conditions existing at Padang with reference to the procurement of-transportation. There were difficulties, and it was known that such transportation could not be procured at once. The plaintiff was, nevertheless, bound to use diligence, and the evidence introduced by it tends to show that some efforts were made to- ship the whole 1,000 piculs in one shipment. We do not think this is a case in which it can be properly said that the plaintiff, when the contract was made, is to be presumed to have made it, having then available means of transportation. The whole evidence shows that it was very difficult to charter vessels at Padang to bring a part of a cargo of merchandise to New York; nevertheless, the duty and obligation were imposed upon the plaintiff to do everything it. could to-perform its contract as soon as might be. The time within which that could be done is the subject of testimony based upon facts, and not merely upon opinions of merchants or others engaged -in the
On the whole testimony relating to the subject, the trial court was right- in leaving it to the jury to' determine whether performance was had or entered upon within a reasonable time, and in the state of the proof we do not feel authorized to interfere with • the verdict of the jury. It was-for them to say, under all the circumstances of the case, including the ability of the plaintiff to perform,' whether the shipment was made within a reasonable time.
But there was proof to sustain the other defense, namely, that of the modification of the terms of the contract. In March, 1893, the plaintiff through Lewis, the broker, made application to- the defendants for a change in the terms of the Contract. It desired to ship
It is further claimed on the part of the plaintiff that the evidence
During the progress of the trial, and as affecting the question of reasonable time, a letter written by the president of the plaintiff was received in. evidence under the defendants’ objection and exception, in which letter is a strong acknowledgment that the plaintiff was in default in performing its contract. That was a letter written by the president, Mr. Pupke, to Pierson, the plaintiff’s agent in Sumatra, and is dated July 10, 1893. The statement is made therein that the delay was altogether unreasonable. As' Mr. Pupke was an officer of the plaintiff, having charge of the transaction in New York on its behalf, his declaration to its own agent was not incompetent as testimony binding the plaintiff. The objection that the letter was written in ignorance of the difficulties the agent in Padang was under, respecting the procurement of a ship, does not relate to the competency as evidence, but only to the effect to be given to the declaration of Mr. Pupke made in the actual course of the business to which it related. Therefore, we think that the letter was not improperly admitted. There are no other questions in the case which require special consideration.
The judgment and order appealed from should be affirmed, with costs.
O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Beunt, P.- J., dissented.
Dissenting Opinion
I cannot concur with- the prevailing opinion. I think that the contract called for the shipment of the coffee by a single sailing vessel, and- that it was not in the contemplation of the parties that it should be shipped in lots Upon different vessels. Such construction is certainly as much in harmony with the language of the contract as the one adopted by the court, and is decidedly more consistent with the action of the parties.
Judgment and order affirmed, with costs.