Fenn v. Dryfoos

74 N.Y.S. 528 | N.Y. App. Div. | 1902

Hatch, J.:

It is fairly evident that the parties by their contract intended that the skirts should be manufactured in readiness for delivery as Uhl 'should,' from time to time, require in his business; that, as he needed them, the defendant should ship the same upon his order. A fair construction of the contract shows that the parties understood that the skirts or cloth should be shipped upon the order of Uhl in quantities specified therein, and .that- the whole .amount for which the contract provided should be ordered or taken by Uhl on or before the 1st day of September, 1900. It was evidently not within the contemplation of the parties that the skirts and cloth should be the subject of a single order or should be furnished all at one time. The skirts were to be manufactured by the defendants, and Uhl was to give directions as to shipments in quantity and time as liis business required, limited only by the time when the whole amount contracted for should be taken. It became the duty, therefore, of Uhl to order from time to time within the specified period a fair proportion of the quantity lie ■was to take, and it was the duty, of the defendants to fill such orders. So far as the record discloses, the defendants were at all times ready to fulfill the terms-oi their contract. When, under date of May twenty-eighth^ Uhl wrote that he canceled the whole order, and stated his inability to |>ay for the goods already received in accordance with the terms of the contract, it amounted to a breach of the same, and upon the receipt of such letter, the defendants would have been justified in treating the contract as at an end and bringing action thereon to recover damages for a breach. A like result also flowed from the letter of Uhl, under date of July eleventh, wherein he reiterated that he had canceled his order and expected a return of the $1,000 which he had deposited. The defendants refused, however, to recognize, as was their right, a cancellation of the contract, but insisted that the same should be fulfilled in accordance with its terms. This insistance upon their part left it open for Uhl, in accordance with the defendants’ request, to fulfill the contract. In this respect he was required to act in good faith and give his orders pursuant to the terms of the contract. He could not suddenly call upon the defendants to deliver the whole quantity of skirts or cloth practically upon demand, and his cancellation of the order so far modified the contract of the parties that the defendants became entitled to a reasonable time to fulfill any order which Uhl should give. In view of the fact that he had given notice that he did not intend to carry out the same the defendants were not required to continue the manufacture and keep on hand goods when Uhl had given notice that he would not take them. But as the defendants insisted that the goods should be taken Uhl was placed in a position to purge himself of his breach and fulfill liis contract. It is claimed that he did so by his order under date of August thirtieth. By this order he demanded that 3,740 skirts of various colors be furnished to him within two days, including the date of the order. It is manifest, in view of the terms of the contract and the prior dealings, that the defendants could not fulfill that order, and it. seems equally clear that Uhl knew that defendants could not make compliance therewith. They had the right, however, to make fulfillment- and also to have a reasonable time within which to do it, and if given in good faith were bound so to do. They also had the right to regard the order as a mere method resorted to by Uhl to place them in default, given in bad faith and for no other purpose, and in consequence refuse to make compliance with its terms. If the order was not given in good faith, but was resorted to as a device to place the defendants in default, it constituted a breach of the contract in effect the same as though there had been an absolute . refusal to fulfill its terms. The acts of Uhl tend strongly to show that this was his sole intention. The question, however, is, does this fact appear so clearly as to present, alone a question of law, and, therefore, one to be disposed of by the court? Under the decision in McDonald v. Met. St. Ry. Co. (167 N. Y. 66) we think that this became a question for the jury, and that the direction of a verdict was error. - If there was a breach of the contract the plaintiff was not entitled to recover,, but if there was no breach, the defendants could not retain the money, and refuse fulfillment upon their part.. We reluctantly reach the conclusion that the court was not. authorized to determine the question as one of law.

The judgment and order should, therefore, be reversed, and a new -trial granted, with costs to appellant to abide the event.

Tan Brunt, P. J., and Patterson, J., concurred; Ingraham, J., concurred in result; Laughlin, J., dissented.

Judgment and order reversed, new trial ordered, costs to appel-. laiit to abide event.