199 A.D. 588 | N.Y. App. Div. | 1922
The facts alleged in the complaint are as follows: On February 12, 1920, W: F. Childs & Co., Limited (hereinafter referred to as the Childs Company) duly agreed to sell and deliver to the plaintiff 5,000 bags of “ fine granulated sugar ” at fifteen and one-half cents per pound, free on board, at the refinery at Philadelphia, Penn., or New York, N. Y., delivery to be completed on receipt of goods by carrier, payment to be made by taking up sight drafts with bills of lading attached with exchange and interest, if any. For the purpose, among other things, of performing the contract with the plaintiff, the Childs Company on February 14, 1920, bought from the defendants 18,200 bags of “ fine granulated sugar ” at fifteen cents per pound, free on board, at the refinery, at Philadelphia, Penn., or New York, N. Y., payment to be made by taking up sight drafts with bills of lading attached, together with collection charges and interest, if any. Thereafter, by direction of the Childs Company, and about August 6 and 9, 1920, the defendants shipped to Green Bay, Wis., 5,000 bags of sugar, which they represented to be fine granulated sugar, and thereafter had their invoices therefor, with bills of lading and sight drafts attached, at the price of fifteen cents per pound, presented to the Childs Company at Chicago, 111., and received in payment therefor $75,000. Upon the payment of said drafts the Childs Company received the bills of lading for the 5,000 bags of sugar, and attached them to their own invoices and drafts, and presented them to plaintiff at Green Bay, Wis., and represented to the plaintiff that said sugar was “ fine granulated sugar ” and received from plaintiff $77,616.15, including exchange on said drafts. Thereafter the plaintiff sold some of said sugar in its original packages, and the same was returned on the ground that it was not fine granulated sugar. Thereupon plaintiff examined the same and found that it was not fine granulated sugar or merchantable as such, but was of different color and granulation and of
There is no allegation in the complaint of a rescission of the contract between the Childs Company and the defendants by the Childs Company, except through the plaintiff, and then only as to 5,000 bags out of the total of 18,200. There is no allegation that the remaining 13,200 were not of the quality specified, nor that the contract was unexecuted in regard to the 13,200 bags, nor any allegation appropriate to the rescission of the entire contract; nor is there any allegation that the contract was subsequently modified, or that the contract had been assigned, the complaint stating that the
The case presented is by a corporation not a party nor privy to the original contract, seeking a rescission of a part of a contract between third parties. It is well settled that the plaintiff must be a party or privy to a contract to entitle him to maintain a suit in equity for its cancellation or rescission. (Insurance Co. of Penn. v. Park & Pollard Co., 190 App. Div. 388, 393, and cases cited, affd., 229 N. Y. 631.)
The contract between defendants and the Childs Company was entire and not a divisible contract. “ The entirety of the contract is not destroyed by the circumstance that the subject of the sale is of such uniform character as to be wholly divisible proportionately, by weight or measure, or is contained in packages of uniform quality and value, even with the added circumstance that the consideration is named only by way of fixing the rate or price of the unit of such division * * *. The entirety may be broken by the concurrent act of both parties, so that a partial rescission may be effected. Thus when a part only of the goods have been delivered, upon a contract like the present, and one party refuses to complete it by delivering or accepting the remainder, the other party may then elect to treat such refusal as a repudiation or rescission of the unfulfilled part of the contract. If the seller refuses to deliver, the purchaser may recover back any excess of purchase money that has been paid by him, beyond the price of what has been delivered * * *. But if the breach of the contract on the part of the seller is only in the quality, the other party cannot convert that into a rescission, but must, if he intends to rescind at all, rescind in fofo.” (Mansfield v. Trigg, 113 Mass. 350, 353.) This is a very good statement of the common law which obtains in this jurisdiction. (See Portfolio v. Rubin, 196 App. Div. 316, 318.) We have recently decided that section 125, subdivision 3, and section 156 of the Personal Property Law (as added by Laws of 1911, chap. 571) did not change the common law in this regard. (Madison Costume Co., Inc., v. Goldberg, 198 App. Div. 895.)
The only possible action that the Childs Company could have against the defendants would be an action for damages,
There are several grounds of demurrer stated, none of which are well grounded except that the complaint does not state facts sufficient to constitute a cause of action.
The order will, therefore, be reversed, with ten dollars costs and disbursements, and under the authority of section 1569 of .the Civil Practice Act and rule 112 of the Rules of Civil Practice, the demurrer will be sustained and the complaint dismissed, with costs.
Clarke, P. J., Laughlin, Dowling and Merrell, ,JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, demurrer sustained and complaint dismissed, with costs.