189 A.D. 597 | N.Y. App. Div. | 1919
This is an action on a contract made between the parties on the 9th day of October, 1918. The plaintiffs were engaged in the cotton goods business in the city of New York as copartners, and the defendants were engaged in business at the same place. It is to be inferred from the testimony that the defendants were negotiating a contract with the government for pillows in the performance of which they would require a considerable quantity of cotton ticking. On the 27th day of September, 1918, the plaintiffs wrote the defendants, confirming a telephone conversation, stating that they could furnish defendants with from 100,000 to 150,000 yards of twenty-eight and one-half inch A.C.A. ticking, weighing eight ounces to the thirty-two inch width, for deliveries in November, December and January, at forty cents per yard and could give the defendants an option on that quantity of ticking, like a sample of thirty-two inch ticking submitted the day before, the option to continue until the fourth of October, by which time the plaintiffs expected to have the defendants’ order. It appears that on the 9th day of October, 1918, the defendants had succeeded in negotiating such a contract with the government, in the performance of which they would require 35,000 yards of this ticking of the width of twenty-eight and one-half inches, and on that day they negotiated a contract with the plaintiffs therefor by telephone. The plaintiffs did not have the goods on hand and it was understood that they were to have them manufactured. After the contract was thus verbally negotiated, and on the same day, the defendants wrote the plaintiffs with respect thereto as follows:
“ As per conversation over the telephone this afternoon, you will please enter our order for 35,000 yards of 8 oz., 28|" wide, A.C.A. Ticking, at 40c per yard, usual terms.
“ As spoken to you already, it is understood that this ticking is to be in accordance with the original count of thread as written by you on September 27th, 88 x 58.
“ As soon as we hear from the Medical Department, we will inform you as to our contract number which will enable you to rush this ticking through for us. You will please start in delivery at the very earliest possible date, not later than November 5th.”
“ We have your favor of the 9th instant, confirming order you placed with us over the ’phone, for 35,000 yards 28½ A.C.A. ticking at 40c per yard, as per samples submitted to you, of these goods.
“This order has been booked, and we await receipt of the Government order number, so as to expedite deliveries of this merchandise.”
Both parties understood that the government, on account of the war, was exercising supervision over raw material and manufactured products of this kind and over the shipment thereof. The plaintiffs showed in effect that owing to this supervision the mills were required to give preference to work on government orders and to orders for goods to be used in the fulfillment of contracts with the government. The mills were not permitted to give preference to the manufacture of such goods until the number of the government contract in the fulfillment of which the goods were to be used was furnished. The plaintiffs not having received the number of the defendants’ contract with the government wrote the defendants on the twenty-fourth of October, referring to the order for the goods, and asking for the government contract number, saying it would “ accelerate shipments if we have the Government number.” To that the defendants replied the next day stating that although they had gone ahead with the manufacture of the pillows they had not received their contract number and that doubtless they would receive it in a few days and would then communicate with the plaintiffs. The government contract number was not communicated to the plaintiffs until November second when they received a letter from the defendants, dated November first, as follows:
“ We beg to inform you that our Government contract number is No. 7169-N, dated October 17th.
“ We are furnishing ypu with the above information whereby we trust same will enable you to make us prompt shipments of the ticking which we have on contract with you.”
One of the plaintiffs testified that they had not done anything and could not do anything toward the manufacture of the goods until they received the government contract number and that on receiving it they notified the mill at Bolingbroke,
It follows that the judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.
Clarke, P. J., Dowling, Page and Merrell, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellants to abide event.