196 A.D. 701 | N.Y. App. Div. | 1921
Lead Opinion
This is an action by a seller against a buyer to recover as for a breach of the contract the purchase price of goods alleged to have been sold and delivery tendered. Plaintiff was nonsuited at the close of its evidence. The point presented by the appeal is whether it was incumbent on the plaintiff to tender delivery of the goods to the defendants at their place of business in the city of New York without payment in advance, or whether it was defendants’ duty to call for the goods at the seller’s place of business and tender payment in advance and demand delivery there. The contract of sale was made on the 19th of September, 1918, and is in writing and was executed in duplicate. So far as material to the points presented by the appeal, it provided that the plaintiff sold to the defendants at twenty-five cents per yard, fifty bales of 2,000 yards each of double finished Hessian goods, known as burlap, of the quality of the five bales shipped by the plaintiff to the defendants on the seventeenth of September. Evidently a printed form of contract was used for the terms of payment are given as net cash and this is followed by a provision that the terms of payment are subject to revision by the seller and that the purchase price was payable at Brooklyn, in New York or Brooklyn exchange. With respect to the time and place of delivery the contract provided as follows: “ Goods to be taken out prior to Nov. 25th, 1918. * * * Delivery: After completion your order Sept. 18th; 10 bales every ten days. Freight paid to 318 East 32d Street, N. Y. C.”
The last delivery under the contract of September eighteenth
Having received no reply to this communication, plaintiff wrote to the defendants again on the twenty-ninth of October stating in substance that its invoice of October third called for a cash payment of $5,150, which it had not received and that it was disappointed and insisting on a remittance therefor to reach it not later than November fifth and that it was prepared to make delivery under the contract in question whenever defendants were ready for the goods but that the terms on further deliveries would have to be in cash in advance and that as indicated in its letter of October twenty-third the goods had been put aside for defendants on plaintiff’s invoice of September nineteenth and that it expected defendants to complete taking delivery thereof not later than November twenty-fifth. It was not shown that defendants answered either of these letters. The vice-president of the plaintiff testified that he had a conversation with defendant Harry Frankel over the telephone on October twenty-ninth concerning the payment of the overdue invoices of October third and that Frankel stated in substance that it would be paid in a few days and witness asked him “ what about the balance, ordering out the balance on your other contract? ” to which Frankel answered “ We have cancelled that contract.” and the witness replied that he knew nothing about any
It is contended in behalf of the plaintiff that even if it was its duty to deliver the goods at the defendants’ place of business specified in the contract as 318 East Thirty-second street, New York city, to which it was required by the contract to pay the freight, still under its reserved authority to revise the terms of payment, it could, as it did, require payment to be made in advance before it shipped the goods. That contention, I think, is unsound for that would be requiring the defendants to take the risk of subsequently obtaining the goods from the plaintiff. The reasonable construction of those provisions of the contract is, I think, that the authority of the seller to revise the terms of payment was intended to relate to terms of payment involving some period of credit, after delivery. On the plaintiff’s theory it could maintain with equal force that it might have exacted payment a month in advance of delivery. Plaintiff also contends that the words, “Goods to be taken out prior to Nov. 25th, 1918,” meant and were understood to mean that the goods were to be delivered upon receipt of shipping orders from the defendants. It does not claim that defendants were to call and take the goods but that it was not obliged to deliver them at the place of business of defendants until it received shipping orders. In .view of the other provisions of the contract obligating plaintiff to pay the freight to 318 East Thirty-second street, New York city, I think it should not be so construed as to relieve plaintiff, if it desired to put defendants in default, of tendering delivery of the goods, not ordered out by the defendants prior to November twenty-fifth, to the defendants at their place of business on that day, or if it desired to place the defendants in default with respect to ordering out the goods in installments of ten bales each every ten days after the completion of the former order, it should likewise have tendered the delivery of those installments of goods at the place of business of the defendants to which it was obligated to pay
Dowling and Mebbell, JJ., concur; Clabke, P. J., and Gbeenbaum, J. dissent.
Dissenting Opinion
After the formal and repeated refusals of the defendants to order the goods out or to take them, and their formal attempt to cancel the contract, I do 'not believe it was incumbent on plaintiff to go through the idle ceremony of carting these bulky goods over to New York and back again. In so far as the decision is based upon a failure to show a physical tender, I dissent.
Judgment affirmed, with costs.