41 Del. 386 | Del. Super. Ct. | 1941
A demurrer to the original declaration in this case was overruled on May 29, 1941, in an opinion not reported. The plaintiff, nevertheless, thought it advisable to amend, and, upon leave granted, filed a new declaration attaching thereto and making a part of it certain exhibits.
The amended declaration alleges: (1) that on May 27, 1939, the parties entered into an agreement, evidenced by the plaintiff’s written order (exhibit A) whereby the defendant agreed to deliver and the plaintiff agreed to accept and pay for 5,000,000 hexagon cartons of a certain kind and quality and in accordance with sample, to be shipped as ordered out by the plaintiff, a small quantity only to be manufactured on “the first run,” to prove conformity, with privilege of cancellation if not in compliance; (2) that during August, 1939, the defendant delivered 570,524 cartons which, although not considered satisfactory, were, after negotiation, accepted and approved on September 27, 1939, and thereupon the plaintiff instructed the defendant to ship forthwith the balance of the order towit, 4,429,476 cartons, at the agreed price of $4.60 for each thousand; (3) that the defendant refused to make shipment of the balance of the cartons at the agreed price, and offered to make delivery only at an advanced price, and, as a result, the plaintiff advised the defendant that it had been obliged to purchase certain of its requirements from another source at a price higher than the contract price; (4) that the dispute between the parties was the subject of negotiation, and on November 22, 1939, the defendant informed the plaintiff that it was willing to furnish a total of 4,000,000 cartons at $4.95 a thousand, in lieu of the balance of 4,429,476 cartons at $4.60 a thousand, which offer was rejected on December 8, 1939, and the plaintiff demanded that the defendant deliver the cartons as ordered;
The defendant contends that the declaration discloses a fatal repugnancy. The argument is that the plaintiff might have alleged a cause of action based on the agreement of May 27, 1939, as modified on March 11, 1940 with respect to the time of delivery and acceptance; or have alleged a cause of action based on the later agreement, considered as a substantive contract, on the theory that the parties intended to cancel the original agreement in its
It is not expressly alleged that the new promise was accepted in satisfaction of the existing contractual duty. It is alleged, however, that the former contract was abrogated by the conduct of the parties, and that a new contract was entered into. It is asserted that the original contract was breached by the defendant with resulting damage of which the defendant had notice. From the exhibits it appears that during the negotiations leading to the formation of the new contract, the plaintiff offered to waive its claim for this damage. The final agreement of the parties, undoubtedly, contemplated the surrender by the plaintiff of its right of action growing out of the defendant’s breach of its original contractual duty; and when the new contract was entered into, that right of action was extinguished. It is sufficiently clear, therefore, that the plaintiff accepted the new promise as an immediate satisfaction of the defendant’s pre-existing contractual liability. The cause of action was properly based on the agreement of March 11, 1940, whereby the defendant agreed to deliver, and the plaintiff agreed to accept the balance of 4,429,476 hexagon salt cartons comformable to approved sample, at the price of $4.60 the thousand, on or before September 1, 1940.
The demurrer is overruled.