191 A.D. 719 | N.Y. App. Div. | 1920
The plaintiff manufactures lumber. The defendant was constructing aeroplanes for the government and needed lumber. The plaintiff had manufactured and furnished lumber to the defendant for this purpose before entering into the contract in suit. The inspection had been made by a
The plaintiff at once started the work of manufacturing the lumber. After plaintiff had entered upon the work a confirmation in writing was sent by the defendant to the plaintiff, stating the quantity, price and kind of lumber to be manufactured, and adding the words “ subject to our inspection,” but did not specifically name the person who had been agreed upon as inspector.
About two weeks thereafter, while the plaintiff was engaged in the work of manufacturing the lumber, but before any had been inspected or delivered, the defendant wrote to the plaintiff to note that the white ash would be subject to inspection by a government representative at the point of shipment. Within a few days thereafter the plaintiff talked over the telephone with defendant’s representative, calling his attention to this letter and to the fact that the inspection was different from what had been agreed upon, and thereafter refused to proceed with the performance of the contract and brought this action to recover damages for a breach of the contract, claiming that the defendant had repudiated the same by insisting upon government inspection.
At the close of the plaintiff’s case the defendant moved for a nonsuit, which was granted. The nonsuit seems to have been granted upon the ground that the plaintiff had failed to establish any damages by the breach, it not appearing that
I am of the opinion that the plaintiff made out a case. If the parties agreed upon a method of inspection, and the person to do the inspecting, that agreement was binding upon both parties, and the plaintiff was not required to proceed with the performance of the contract in the face of the claim which the defendant made that the lumber was to be subject to government inspection. That was the very thing against which the plaintiff contracted, and I think it is no answer to say that if the lumber in fact came up to the requirements it was immaterial who inspected it.
In Dustan v. McAndrew (44 N. Y. 72), which involved the sale of hops to be inspected by one Brown, or some other inspector satisfactory to both parties, it was held that neither party had the right to demand another inspector unless Brown neglected or refused to inspect. ( The question was fully discussed there and no further discussion is needed here. (See, also, 35 Cyc. 227; Camden Iron Works v. City of New York, 104 App. Div. 272.)
It was not necessary that the plaintiff should manufacture and tender the lumber to the defendant in order to maintain the action. When the defendant repudiated a material provision of the contract there was an anticipatory breach and the plaintiff could rescind the contract and recover his damages for a breach thereof. (Pers. Prop. Law, § 146, as added by Laws of 1911, chap. 571; Hadfield v. Colter, 188 App. Div. 563; Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y. 120; Wester v. Casein Co. of America, 206 id. 506, 515.)
As regards the point made by the respondent, that the oral contract was merged in the writing, it is enough to say that even if the memorandum is to control, the provision which makes the lumber subject to the defendant's inspection does not permit the defendant to substitute a government inspection. But in that connection the plaintiff contends that the terms of the contract had been agreed upon; that
I think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.