143 Minn. 40 | Minn. | 1919
Plaintiffs and defendant are dealers and brokers in feed; plaintiffs in Boston and defendant in Minneapolis. In the fall of 1916, defendant sold-300 tons of bran for $38 per ton, delivered at Boston or Boston rate points, for November shipment. By subsequent agreement the price was changed to $33 per ton. At the request of plaintiffs in December, 1916, shipment was delayed. However, in January, 1917, and the months fol
We do not sustain the contention that no valid modification of the written sales contract, on April 18, 1917, was proven by competent evidence. The oral part of the agreement of that date did not alter the terms of the contract, it merely fixed the time within which the merchandise that should have been delivered long before might be delivered under the contract. It went to the performance of a subsisting contract of recognized validity. Scheerschmidt v. Smith, 74 Minn. 224, 77 N. W. 34. Moreover, this was not an oral modification of a contract necessarily void unless in writing. True, it was a contract for the sale of goods of thé value of more than $50; but, if part of the goods were delivered and accepted, the contract need not be in writing. Sixty tons of the bran were delivered and accepted under this modification and as part thereof. And there is no trouble with the consideration, for defendant was then in default — more than a reasonable time for dealing had elapsed — and a waiver of this breach was a consideration for defendant’s promise to make shipment during April.
There are, however, other difficulties with plaintiffs’ case that, in our view, preclude recovery. One of the plaintiffs, the active manager of the business, admitted that there is a custom or usage, prevailing both in Minneapolis and at Boston and Boston shipping points, that a contract of the sort here involved is not breached until after 24 hours’ written notice has been served upon the. one party by the other within which he must tender for delivery or accept, as the case may be, the merchandise involved in the contract. There was other testimony as to this usage. The evidence as to custom was objected to because not pleaded. It was rightly admitted. Where a general custom or usage prevails in the con
Plaintiffs, however, seek to avoid the effect of the want of notice in this instance, by the claim that it is not applicable to a case where a definite time for delivery is fixed by the contract. We do not think the claim should be sustained. In the terms of the modification, as testified to by the plaintiff who claimed to have made it, there is nothing excluding the operation of the trade custom referred to. The delvery was ont for a day certain, but covered a period of 12 days. In Lillard v. Kentucky Distilleries & Warehouse Co. 134 Fed. 168, 67 C. C. A. 74, Judge Lurton says: “In reference to contracts where custom is ordinarily comprehended as part of the agreement the rule, as we understand it to be, is that evidence of such custom and usage is not to be excluded, unless the language employed by the parties is found to be plainly irreconcilable with the rule imposed by the custom.” We think the language in which the modification of this contract was expressed is reconcilable with the custom of the trade upon the subject of placing either party in default. Holder v. Swift (Tex. Civ. App.) 147 S. W. 690; S. B. & B. W. Fleisher, Inc. v. Abbott, 222 Fed. 211, 137 C. C. A. 525. Furthermore,
Defendant contends that, irrespective of the effect of the custom mentioned, plaintiffs, by demanding delivery after the expiration of the time fixed therefor, waived the right to insist that the breach occurred as of April 30, and that'by such conduct defendant was given a reasonable time from the date of the last demand within which to make delivery. Language of text writers and decisions may lend support to the contention of appellant that, where a time limit is fixed for the performance of a contract, a request made, upon the party in default, to perform, after the expiration of the time, waives the breach, and the contract thereafter becomes a subsisting contract with the time limit eliminated, giving the one in default a reasonable time after the request within which to perform. 3 Elliott, Contracts, § 2026; Lowy v. Rosengrant, 196 Ala. 337, 71 South. 439. It may be doubted whether the rule applies where the one in default makes no effort whatever, after the request is made, to perform nor promises so to do. But in this case we have more. On April 30 plaintiffs wrote defendant, knowing that the letter could not be received until after the time limit had expired: “Now, please bend some real efforts to clean up this matter.” On May 7 defendant replied: “The writer will keep after this and try to get same straightened out at once.” On the same day, and again on May 11, plaintiffs write urging defendant to ship the bran. The next letter from plaintiffs is dated May 17, where-, in it is said no reason exists for turning this bran “over to E. S. Wood-worth and thereby penalize us for $1.25 per ton for handling charges * * * we want you to get busy and clean up this contract without further delay.” Before this last letter had barely time to reach defendant, plaintiffs, on May 19, wrote declaring that they would sue for damages for a breach of the contract. It appears that during the whole time in question embargoes were placed on the cars belonging to certain railroads, and it was difficult to obtain cars for shipment to eastern points. Some arrangement was made between plaintiffs and defendant, whereby delivery might be made to E. S. Woodworth at Minneapolis who would forward, if defendant could not obtain ears that would go east. On May
Order reversed.
