147 N.Y.S. 721 | N.Y. App. Div. | 1914
By written agreement of December, 1911, the defendants purchased all the pure skim milk from the plaintiff’s creamery for one year from December first at twenty-three cents per can of forty quarts, to be placed in the defendants’ cans at the creamery until April first following, after which date the defendants
Finding it difficult to remove the milk from the creamery to the place where they were to make the pot cheese, in January defendants obtained a modification of the contract, which the jury have found to he as follows: The plaintiff was to remove certain of his machinery and appliances and fix the floor of the creamery so that the defendants could install two tanks with a capacity of 600 gallons, each tank being .sixteen feet long and three and one-half feet wide. That defendants were to put in a cheesemaker of their own and receive the milk into the tanks as it came from the separator and, to cover the expenses in fixing the building, and for its use and for the trouble in having the cheese made there, the plaintiff was to receive twenty-five cents per can instead of twenty-three cents. From January until June twenty-first the contract was performed in that manner. Oole was the defendants’ butter-maker and representative at the factory. On the latter date the defendants wrote the plaintiff that they would go no further with the contract. They, however, left their tanks in position and connected with the separator and their cheese-maker remained at the factory in charge of them, and from day to day when the tanks became full he opened them and allowed the milk to run into the whey vat. The plaintiff was faithfully performing his contract and the defendants had no right to rescind it. Nevertheless the defendants had the right to refuse to go any farther with the contract and were liable to pay such damages as the plaintiff might sustain. The fact that the defendants had written the plaintiff that they would go no farther, and the fact that they still occupied the space in the creamery with their tanks connected with the separator, and that their agent remained in charge disposing of the milk from day to day, rendered the defendants’ position somewhat ambiguous, and it was a clear question of fact
All concurred, except Smith, P. J., writing for modification, in which Howard, J., concurred.
(for modification):
This action was brought to recover the contract price of skim milk alleged to have been delivered to appellants from
After the rescission of the contract by appellants the respondent was not authorized to continue to deliver this milk. It is contended in his behalf that Cole, the cheese-maker, was in the employ of the defendants, and a delivery to Cole was a delivery to defendants. Whether or not Cole was in the employ of the defendants at that time is immaterial, as the rescission of the contract clearly operated as a revocation of his authority to receive the milk for the defendants. Plaintiff’s duty upon the rescission was to use reasonable means under the circumstances to reduce the loss. “ He cannot stand idly by and permit the loss to increase, and then hold the wrong-doer liable for the loss which he might have prevented.” (13 Cyc. 71. See, also, Shannon v. Comstock, 21 Wend. 457, 461, 462; Schleicher v. City of Mount Vernon, 107 App. Div. 584, 586; Carter Co. v. Fischer, 121 N.Y. Supp. 614.) It appears in the evidence that soon after this rescission plaintiff had an offer from third parties to purchase this skim milk, which he declined to accept. No question is suggested as to the responsibility of the parties offering to purchase or as to the good faith of the offer, and the price is not named. It was clearly
For the skim milk delivered between June sixteenth and June twenty-second, however, the plaintiff is clearly entitled to recover. From the course of dealings it may be fairly assumed that the daily deliveries averaged about the same for this month. The value of the milk at the contract price from June sixteenth to July first amounted to the Sum of one hundred and twenty-three dollars and thirty-six cents. Assuming the. average daily delivery to be the same, the contract price of the milk delivered from June sixteenth to June twenty-second would amount to forty-nine dollars and fifty cents; adding to this the fourteen dollars and twenty-eight cents admitted to be due for other items, makes the sum of sixty-three dollars and seventy-eight cents, the amount which the plaintiff is clearly entitled to recover in this action.
Howard, J., concurred.
Judgment and order affirmed, with costs.