18 N.Y.S. 623 | N.Y. Sup. Ct. | 1892
Lead Opinion
This action was brought to rec >ver (1) the balance of the contract price of a certain quantity of Bessemer pig iron sold and delivered, and partly paid for; (2) the contract price of a certain other quantity of the same iron, sold and delivered, no part of which had been paid for; and (3) the difference between the contract and the market price of a third quantity of the iron, sold, but of which the delivery has been prevented by the repudiation of the contract, on the part of the purchaser. The trial resulted in a judgment for the balance due upon the contract and the damages in favor of the plaintiff, from which this appeal is taken.
In view of the amount of testimony taken, the elaborate findings presented by the parties and passed upon, and the opinion of the referee, it will only be necessary for us to state so much of the facts as will present the questions relied upon by the appellant upon this appeal. It is conceded that to a great extent the rights of the parties are to be determined by two agreements entered into between them, one dated December 20,-1889, and the other July 1, 1890. They are as follows:
“Charles W. Matthews, Metal Broker.
"Philadelphia, Dec. 20th, 1889.
“Sold to the Scranton Steel Company, for account of Messrs. Wm. R. Hart & Co., thirty thousand (30,000) tons of Bessemer pig iron, to be run of furnace as nearly as possible equal quantities numbers 1, 2, and 3. For delivery, 1,000 tons in January, 2,000 tons in February, 2,000 in March, and balance in equal monthly proportions during the months of April, May, June, July, August, September, and October, A. D. 1890, and deliverable f. o. b. cars purchaser’s works, Scranton, Pa., at twenty-three and a half ($23.50) dollars per ton of 2,240 lbs. Settlements tó be made in cash on the twenty-seventh (27) of each month for the previous month’s shipments. The above-named iron to contain not over .10 phosphorus, and to be in other respects suitable for the'Bessemer process.
[Signed] “ Charles W. Matthews, Broker.
“Accepted by the Scranton Steel Co., W. W. Scranton, President.”
Deliveries under this contract were commenced in January, 1890, and continued until July 1, 1890, all iron delivered up to that time having been paid for in full. On July 1, 1890, the contract was modified by an agreement in writing as follows:
“That, on the first day of July, 1890, the said William R. Hart, under said name and style of William R. Hart & Co., made and entered into an agreement in writing with the said the Scranton Steel Company, in words and figures as follows, to wit:
“ ‘Agreement. -
“ *W. W. Scranton, Walter Scranton, E. P. Kingsbury,
President. Vice-President. Secy, and Treas.
“•The Scranton Steel Company, Manufacturers of Steel Rails. Works at
Scranton. Pa.
“‘Ho. 47 Broadway.
“‘Hew York, July 1st, 1890.
“ ‘ Memorandum of understanding between Crane Iron Company and W. R. Hart & Co., of the first part, and Scranton Steel Company, of the second part:
“•First. At the request of Scranton, Crane and Hart will suspend shipments for the next two months, with the exception of about 1,500 tons- per month by Hart from Parryville.
“ ‘Second. Scranton will give thirty and sixty days’ paper for amounts now due, but will anticipate if possible.
“•Third. Crane and Hart will resume shipments, but making monthly deliveries as light as possible, and, if necessary,- not exceeding one-half of amounts specified in contracts, and settlements will be made at the rate of
“ ‘The Scranton Steel Company,
“lW. W. Scranton, Prest.””
Under this July agreement, Hart & Co. undertook to deliver the iron there-undelivered in monthly installments, the defendant to pay for each month’s shipments at the rate of $18 per ton, or at market rates on account; settlements to be made on the 27 th of each month for the prior month’s shipments* either in cash or in four months’ paper, at the option of the defendant. Deliveries were made until March 9, 1891, which were paid for at the rate of $18 per ton except the deliveries of January, February, and March, 1891-Payment for the January deliveries became due February 27th, which was. demanded in March, and refused by the defendant, and thereafter this action, was commenced, at which time it is conceded that some 4,800 tons still remained undelivered under the contract. This latter fact of a failure to deliver the full quantity is sought to be made available as a ground of defense-to the plaintiff’s right to maintain the action at all, it being insisted that until the entire contract was completed no right of action could accrue. It seems to us that this question must be disposed of by a consideration as to whether, upon the evidence, the proof was sufficient to justify the conclusion reached by the referee that there was a breach of the contract first on the part of the defendant. The evidence shows that the defendant refused to-make the payments in accordance with the terms of the contract; but, notwithstanding this fact, it is insisted that at most the plaintiff could only maintain an action for the amount then due for iron actually delivered, ancfe could not maintain an action such as this involving a repudiation of the entire contract. It would be a strange rule of law, and one for which we think, no support can be found, to hold that for the purpose of justifying defendant’s breach of its contract a construction should be placed thereon which, by making each monthly delivery a separate and independent contract, would render it necessary for the plaintiff’s assignor to show that he had made each month thereafter a full delivery of the iron contracted for before he could maintain an action thereon, notwithstanding that during this same period the defendant absolutely refused to make any payments of any kind until it. got what it wanted, and was insisting upon, viz., a release from some part, of its obligations under the contract, We think the law to be settled that no one is required to go on delivering goods after he has been notified by the purchaser that he will not pay for them at the agreed price at the end of the contract. This was practically the defendant’s position, and in taking that position it repudiated the contract, and the plaintiff’s assignor was not thereafter required, for the purpose of enforcing his rights thereunder, to continue deliveries when he had been notified that he would not be paid therefor. This consideration, we think, disposes of the question presented by the appellant as to the action having been prematurely brought.
It is insisted, however, that, even if the action could be brought if any amount was due, nothing appears to have been due under the contract- in any event. This contention is predicated upon the theory that the contract, by its terms, provides that the difference between the price of $18 per ton and. the market price of iron should be adjusted at the termination of the contract,, and, as the referee found as a fact that no difference existed between the mar-
Ingraham, J., concurs.
Dissenting Opinion
I dissent. I think it was wrong to admit evidence in respect to error in modification contract. Evidence of the latter could have been offered under general denial, and, because pleaded unnecessarily, the position of the parties is not changed.