115 Misc. 155 | N.Y. App. Term. | 1921
The plaintiff seeks in his first cause of action to recover the purchase price of certain goods which the defendants ordered from him and which were tendered by him to ‘the defendants, and in his second cause of action seeks to recover damages for the defendants’ breach of contract “ in cancelling and refusing to be bound by contract ” for the sale and delivery of other goods. It appeared at the trial that the defendants ordered from the plaintiff twenty-five coats designated as style No. 937 at the price of-thirty-four dollars and fifty cents per coat, and twenty-two coats designated as style No. 934 at the price of thirty-two dollars and fifty cents per coat. The style numbers are apparently the numbers of styles designed and manufactured by the plaintiff. Thereafter the plaintiff made and delivered to the defendants eleven coats of style No. 937 and the defendants accepted and paid for these coats, but they refused a subsequent tender of the remaining fourteen coats of this style number. They also cancelled without reason the order for goods of style No. 934 after seven coats of this style number were delivered, accepted and paid for. At the time when the order for these coats was can-celled, they were all in course of manufacture. The plaintiff completed them a few days thereafter, but the cost of completion does not appear. After the goods were completed the plaintiff, sold them in the open market for twenty-five dollars a coat, and there
The right of the vendor under an executory contract of sale to tender the goods to a vendee and to sue for the entire purchase price upon the refusal of the vendee to accept and pay for them, and thus in effect compel a specific performance of the contract, has never been recognized in many jurisdictions, and even in this state is now limited under the provisions of section 144 of the Personal Property Law. The drafters of the Sales Act undoubtedly intended to codify the gen
In the present case the contract contains no term making the price payable on a day certain irrespective of delivery or of transfer of title, nor does it appear that the goods cannot be resold for a reasonable price, or that the provisions of section 145 are not applicable. There can, therefore, be no action for the price under the Sales Act unless the property in the goods has previously passed. Section 100 of the Personal Property Law provides the rules for ascertaining the intention of the parties as to the time the property in the goods is to pass to the buyer, unless a different intention appears. Buie 4, subdivision 1, seems the only rule which is applicable to the present case. That rule provides that ‘1 where there is a contract to sell unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made,”
It may be that if the contract could be regarded as a contract to manufacture specially for the defendants, such assent to an appropriation after the goods have been manufactured in accordance with the contract might be implied, but in the present case it would seem that the contract is the ordinary contract for the sale of unascertained or future goods by description. The description is apparently the style number designed and ordinarily manufactured by the plaintiff, and it is not shown that they are not suitable for sale to others in the ordinary course of the seller’s business. No materials were furnished by the defendants to be incorporated in the goods when made and the plaintiff could comply with his contract by tendering goods which he might have manufactured for the general purposes of his business. Under these circumstances I cannot find that any assent on the part of the defendants to the appropriation of the goods can be implied. It would seem to follow, therefore, that the plaintiff’s sole right of action, upon the record, as it stands, of the first cause of action, is one for damages for nonacceptance of the goods, and the measure of damages in such action is controlled by subdivision 3 of section 145 of the Personal Property Law. In this regard I have not overlooked the statement of the Appellate Division of this department in the case of Gourd v. Healy, 176 App. Div. 464, that this statute “ is merely declaratory of the common law as' it theretofore existed.” That statement is entirely accurate in regard to the question then under consideration by the
It is also urged that the trial justice applied an erroneous rule of damages in regard to the second cause of action. The plaintiff’s evidence shows that the defendants cancelled the order for goods of style No. 934 while some of the goods were not only still undelivered but were in course of manufacture. After this cancellation the plaintiff finished the garments and sold them for twenty-five dollars apiece, and there is evidence to show that this price was the market value of the garments, and the trial justice thereupon gave judgment for the difference between the contract price and twenty-five dollars per garment, which he held constituted the market price. He thus applied in the second cause of action the measure of damages which we have held he should have applied upon the refusal of the defendants to accept and pay for the goods described in the contract, which constituted the subject matter of the first cause of action. While it is evident that the two contracts are essentially similar, the defendants claim that a different measure of damages must be applied where the vendee cancels his contract while the goods are still in course of manufacture, from the measure which is applied where the breach occurs thereafter.
The Sales Act (Pers. Prop. Law, § 145) provides that in case the buyer repudiates 11 while labor or expense of material amount are necessary on the part of the seller to enable him to fulfill his obligations * * * the buyer shall be liable to the seller for no greater damages than the seller would have suffered
This section of the statute, in my opinion, merely places a limitation upon the rule which has been laid down in its broadest form in Forst v. Knight, L. R. 7 Exch. 111, that in ease of notice to a promisee of a promisor’s intention not to perform his contract, “ the promisee, if he pleases, may treat the notice of his intention as inoperative and await the time when the contract is to be executed and then hold the other party responsible for all the consequences of nonperformance ; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it.” This rule was reiterated and applied in this state in the ease of Rubber Trading Co. v. Manhattan Rubber Manufacturing Co., 221 N. Y. 120, citing Forst v. Knight, supra, and other cases, but it has no application to the present ease, for here the plaintiff did not treat the notice of cancellation by the buyer as inoperative but bases his right of action upon such notice as an anticipatory breach. It is true that he thereafter completed the garments, but the buyer did not thereby become liable to the seller for any greater damages “ than the seller would have
The serious question on this branch of the case is not whether subdivision 4 of section 145 of the Personal Property Law applies, but whether the trial justice correctly applied to an action based on an
Finch, J., concurring in the result.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.