122 N.Y.S. 306 | N.Y. App. Div. | 1910
The complaint in this action sets forth that the plaintiff, a foreign corporation duly authorized to do business in the State of Hew York, entered into an agreement with the defendant, a domestic corporation, for the sale of 425,000 feet of short leaf pine lumber, f. o. b. vessel St. Simons, basis of freight (that is the freight
“ Sixth. That within such time the plaintiff duly proceeded to manufacture the remainder of the short-leaf-pine lumber agreed to be manufactured and delivered by it in accordance with said agreement ; and of such remainder, and within such time, had manufactured 198,876 -feet thereof, and duly delivered same to defend.ant on dock at Belfast, in the State of Georgia, at which place, as provided in said agreement, said lumber was to be delivered.
“ Seventh. .That after plaintiff had so manufactured said 198,876 feet of sliort-leaf-pine lumber, and delivered the same as aforesaid, and was manufacturing the remainder thereof, the defendant notifiéd the plaintiff that it would not-receive the said lumber manufactured or any part thereof, or the whole or any part of the remainder of said short-leaf-pine lumber, and has refused, and still ■ refuses, to . receive said short-leaf-pine lumber as aforesaid or any part thereof, all without the consent of the plaintiff; that due and prompt notice of the delivery of said short-leaf-pine lumber, as aforesaid, was given the defendant.” . .
It is further alleged that the value of said 198,876 feet of lumber was $3,281.4.5, payment of which has been demanded and refused and no part of which has been paid. The complaint contains the following further allegation:
“ Ninth. That plaintiff has performed on its part' all the terms, covenants and conditions of said agreement on its part to be performed, and at all the times mentioned herein has been ready and willing, and now. is ready and willing to perform all the terms, covenants and conditions of said agreement on its part to be performed.”
Defendant demurred - to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action.
The complaint then sets forth that after plaintiff had so manufactured and delivered the 198,876 feet (that is, in effect, after the expiration of a period of time ending on July 31, 1906), and while
By no reasonable construction of the language used can this be interpreted to mean more than an allegation that after July 31, 1906, the notice in- question was given by the defendant. This being so, notice given after the time fixed for performance cannot excuse the plaintiff’s failure to perform!
When a contract entire in its nature is pleaded and it affirmatively appears that plaintiff lias not performed and he" seeks to excuse his failure to perform by notice given by the other party that the latter will not accept the merchandise agreed to be bought or manufactured, it must'affirmatively appear by the complaint that such notice was given before the time when the contract by its terms was to be fully performed.
The 9th paragraph of the complaint does not assist ■ plaintiff, nor help to set forth a good cause of action, for the provisions of section 533 of the Code of Civil Procedure have not. been complied. with in that the word “duly ” has been omitted. Therefore, the inferences which might otherwise be drawn in favor of plaintiff cannot be supplied here. (Clemens v. American Fire Ins. Co. 70 App. Div. 435.)
The interlocutory judgment appealed from should, therefore, be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff' to serve an amended complaint within twenty days, on payment of such costs as taxed.
Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.
Judgment reversed, with costs, and démurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.