102 N.Y.S. 363 | N.Y. App. Div. | 1907
This is an action for damages for breach of contract of sale. The plaintiff complains that on September 18, 1901, the defendant agreed to sell and to deliver to him a quantity of cement at the price of one dollar and twenty cents per barrel; that up to December 26, 1901, the parties proceeded in performance, but that on' September 4, 1902, the defendant refused further performance. The
At the close off the plaintiff’s testimony the defendant moved- to dismiss the complaint, on the ground of no cause of action proven. This motion was denied then, to be considered later. Thereupon the defendant offered no evidence and renewed its motion, Which was granted. The plaintiff made requests for submission óf certain questions, and finally.of the whole case, which were denied under exceptions. Judgment was, therefore, entered dismissing the com-' plaint upon the merits, and the plaintiff appeals. In September, 1901, the plaintiff was a contractor at work upon a sewer at Hew Rochelle. The defendant was a maker of cement, and Sears,- Humbert & Co. were its agents. In that month Mr. Vernon, a broker in selling cement, negotiated with Sears, Humbert & Co. as the agents of the defendant for the sale to plaintiff of about 15,000 barrels of cement at one dollar and twenty cents a . barrel. Subsequently the defendant at plaintiff’s request delivered to him 680 barrels, of cement of which the last shipment was in December, 1901. On August 23, 1902, the plaintiff in his letter to the defendant inclosing a payment for the cement received, wrote demanding a further consignment of 1,000 barrels. The defendant answered that it had no contract and would not comply. Mr. Sears, called by the plaintiff, testified on cross-examination that Mr. Vernon, the broker, told him that the plaintiff wished the price for the cement to be fixed at the low figure of one dollar and twenty cents a barrel,. because it was “ a winter contract; ” that the cement was required for fall, "winter- and-spring deliveries. His testimony is that the demand for cement-is not so, great during those seasons; that the mill men wish to work through the winter ; that they do not-wish to store the product and, therefore, they are willing to sell it at lower prices. It appeared that there is -a marked difference between such prices and the prices in the other months unless there is an over-productian. Mr. Sears also testifies the price was fixed with. Mr. "Vernon at one dollar and twenty cents a barrel for the -reason that the cement would be taken during the fall, winter and spring, during -the dull season; that he then said this to Mr. Vernon, and that
It is also contended that it was error to dismiss the complaint because the evidence would have warranted a finding by7 the jury that Vernon was given the power to make the contract fay the cement required for the completion.of the plaintiff’s contract with the city of Mew Rochelle and as an incident thereto to fix the date of delivery, and that in the absence of knowledge by the plaintiff as to the instructions for winter deliveries the contract made by Vernon was binding on the defendant. In the first place, Vernon was a broker on his own account and was not generally the agent of the defendant. Mot'only does Sears testify to. this fact, but the plaintiff testifies: “I wakto send to the Whitehall Portland Cement Company or Sears, Humbert & Company7, either one. He (Vernon) told me that Sears, Humbert & Company were the selling agents.” The letterhead of Mr. Vernon read .: “ Walter F. Vernon, Portland and Rosendale Cements.” It does not appear, as the learned counsel for the appellant contends, that Mr. Sears was thoroughly familiar with the contract of the plaintiff and, therefore, of his natural requirements for cement under it. All that appears is that Mr. Vernon told Mr. Sears that there was a contract, and that the plaintiff would require about 15,000 barrels of cement. There is nothing in this information to negative a supposition by Mr. Sears that all the cement could be furnisheff under a “ winter contract,” made ■ in September. It is also insisted that as an incident to his power to contract Mr. Vernon was necessarily invested with power to agree upon the time of delivery, and in, the absence of notice of limitation the plaintiff was entitled.to assume that any contract made by Mr. Vernon would be binding, even though his power to contract, was limited to the contract in suit. But, as I have said, Mi'.. Vernon was not, generally7 speaking, the agent of the defendant, and there was no reason why the plaintiff should.suppose that
The judgment must be modified accordingly, and as so modified is affirmed, without costs.
Hirsohberg, P. J., Hooker, Gaynor and Miller, JJ., concurred.
Judgment modified by striking out the words “ upon the merits,” and as modified judgment and order affirmed, without costs.