In re Kelly

51 F. 194 | S.D.N.Y. | 1892

Brown, District Judge.

The record does not show the date when the claim was first filed. If the statements of counsel be taken as to this date, and the reasons for the delay, there were no such laches as properly to exclude a re-examination.

2. The bankrupts, for 10 weeks after the time at which deliveries were agreed to be made by the contract, 'made short deliveries, instead of the whole amount agreed on. Mr. ThaJon," the agent in New York, frequently complained, or transmitted the complaint of his principals, on account of these short deliveries. The acceptance by him of so much of the oleomargarine or fat as he could get, was no waiver of the right to the rest, nor of his lawful claim under the contract for the special damages agreed on in ease of short delivery.

8. The letters of the 29th of December, 1876, and January 8, 1877, terminated the contract, so far as respected any further future deliveries under it; but this was neither a waiver, nor a release, of the liability, or of the vested right of action for damages, which had already accrued on the bankrupts’ previous defaults.

4. The evidence, in my judgment, is not sufficient to establish any express waiver by Mr. Thalon of the delivery of the weekly amounts required by the contract, or any promise or intimation, or understanding, from him that the liability for short deliveries would be waived; nor is there any evidence that Mr. Thalon had any power to make any such waiver. The' correspondence shows that the bankrupts fully understood that their short deliveries under the contract subjected them to a legal obligation in consequence. They desired to be relieved from it, but they never obtained any such release; nor do I find that the short deliveries made after the request for such a release, or waiver, were made by them, or were received by Mr. Thalon, on any understanding that their liability for any short deliveries would be waived, or that the contract was in any respect to be varied. The verbal testimony to that effect is insufficient; it was given eight years after the transaction; it was denied by Mr. Thalon, and finds no support in any writings.

The amount delivered for 10 weeks was only about one fifth of the amount agreed to be delivered, and was almost wholly fat. The complaints had been numerous, and no substantial improvement made in the bankrupts’ deliveries. The creditor was justified in putting an end to further deliveries under such circumstances, and to claim damages for the breaches of contract up to that time. For there was never a single performance by the bankrupts of their contract, and never any tender of performancé.

It follows that the creditor, Jules Mason, is entitled to prove at the stipulated rate of 1 cent per pound for 2,613,472 pounds, the deficiency during 10 weeks up to the 29th of December, 1876, amounting to $26,134.72, to which amount, with interest from that date, the claim should be reduced, and for that amount allowed.