207 A.D. 9 | N.Y. App. Div. | 1923
On August 8,1919, the parties to this action entered into a written contract in and by which the defendant sold to the plaintiff forty
Upon the trial Mr. Mason’s deposition was introduced in evidence. He testified that at all times during the existence of the contract the defendant had cars which it could have used to fill the plaintiff’s contract and that during all that time it had a large supply of molasses from which the contract could have been filled. It also appeared that the market price of the molasses had increased from eight cents a gallon, the contract price, to twenty-six cents a gallon.
A nonsuit was granted at the close of the plaintiff’s case upon the ground that the action had been prematurely brought. The trial court said: “ The way I feel about it I do not believe a case
However, on August twenty-fourth, the plaintiff and the defendant entered into a new and specific agreement limiting the time for shipment to one week from that date, and the defendant made a definite promise to ship the forty cars within that time. The defendant broke that agreement as it had broken its other agreements. On the expiration of the one week within which the defendant agreed to ship the molasses the plaintiff had a right to commence an action for the damages caused by such breach.
It is urged that the plaintiff cannot recover in this action because the plaintiff did not allege the agreement on the part of the defendant to ship within one week from August twenty-fourth. The complaint alleges the contract to ship on or before May first, the breach of said contract by the defendant, the extension agreement by which the defendant agreed to ship on or before July first, the breach of such agreement by the defendant, and that thereafter, on July twenty-ninth, the plaintiff demanded that the defendant ship the molasses on or before August fifteenth. The complaint then alleges “ that although the time within which the said defendant promised and agreed to deliver and ship the said molasses has long since expired and although the time specified in such demand has long since expired, the said defendant has wholly failed and neglected and refused to ship or deliver any part of the said molasses.” I do not think the plaintiff is foreclosed by the form of the complaint. All the plaintiff was required to allege in the complaint was the original contract, its breach, and the damages caused. If the defendant had then pleaded an extension agreement such allegation would have been deemed denied without the service of a reply. (Civ. Prac. Act, § 243.) Although the plaintiff alleged more than necessary, the fact still remains that
It is also urged that the plaintiff was estopped by certain statements and admissions contained in its bill of particulars. The bill of particulars contained the following statement: “ In addition to the foregoing documentary demands, orders and instructions, oral communications between the defendant, presumably represented by W. H. Mason of New York, and Sugar Products Company, presumably represented by A. I. Kaplan, took place almost daily from a period of time commencing about August 1st, 1920, until the time of the commencement of this action, in which said Kaplan, or other representative of said Sugar Products Company, requested delivery and shipment of the molasses referred to in the complaint for and on behalf of the plaintiff, but that the defendant [plaintiff] is unable to specify the names of the individuals or the times when said conversation took place with any greater particularity, owing to the hostile position toward this plaintiff which all parties thereto have now taken.” It is urged that if demands were made up to the time of the commencement of the action a reasonable time for shipment could not have intervened after the last demand before the commencement of the action, and, therefore, that the action was prematurely commenced. The evidence now discloses that on August twenty-fourth the right of the Sugar Products Company and of Mr. A. I. Kaplan to make a demand of shipment came to an end by the agreement entered into between Mr. Ryley, representing the plaintiff, and Mr. Mason, representing the defendant, so that there could not have been any valid demand made by Mr. Kaplan after August twenty-fourth. On that day Mr. Mason stated to Mr. Ryley that he would not take any orders from Mr. Kaplan or any one but the plaintiff, and at that time the plaintiff and defendant, through said officers, definitely agreed upon the time of shipment. It will be noted that the bill of particulars states “ that the defendant [plaintiff] is unable to specify the names of the individuals or the times when said conversation took place with any greater particularity, owing to the hostile position toward this plaintiff which all parties thereto have now taken.” From all that appears the plaintiff made an honest effort to give the defendant all information possible about the conversations which it presumed had taken place. It states clearly, however, that it cannot state definitely the names of the
The trial court erred in granting the motion for a nonsuit. It should have submitted to the jury the question of whether or not an extension agreement was entered into on August twenty-fourth and the jury should have been instructed that if it found that such agreement was entered into then the plaintiff was entitled to recover damages for the failure to ship the forty cars of molasses within the week as agreed, but if such alleged agreement was not entered into then there could be no recovery of damages for the failure to ship thirty cars of molasses, but that there might be a recovery for the failure to ship ten cars if the jury found that the defendant had a reasonable time within which to ship said ten cars after the letter from the plaintiff dated July twenty-ninth demanding shipment of the molasses on or before August fifteenth. If the jury had found that the alleged agreement of August twenty-fourth was not made there could have been no recovery for failure to ship thirty cars on the evidence as it now is because of plaintiff’s letter of August seventeenth and the defendant’s letter of August twenty-third in reply in which it acceded to the request of the plaintiff to ship thirty cars to the Sugar ’Products Company or the Quaker Oats Company upon conditions stated in the letter and it not appearing that the conditions were ever complied with but that the matter was left open, and there being no evidence that the Sugar Products Company or the Quaker Oats Company ever gave defendant instructions for shipment of thirty cars.
According to the record as it now stands that letter was written before August twenty-fourth and not received by the plaintiff before the agreement made on that day. If the agreement was made as testified to by Mr. Ryley, it superseded the letter of August twenty-third.
All concur.
Plaintiff’s exceptions sustained, order of nonsuit reversed upon the law, and motion for a new trial granted, with costs to plaintiff to abide the event.