120 A. 572 | Conn. | 1923
Defendant in support of its motion to correct the finding has caused all the evidence to be printed, and in its assignments of error asks that paragraphs twenty, twenty-one, twenty-four, twenty-five, twenty-seven and twenty-eight be expunged; that some other paragraphs be amended by additions which would not materially affect their legal significance, and that twenty-seven paragraphs of its draft-finding, marked not proven, be added to the finding. None of these assignments of error are pursued on the brief except as to paragraph twenty-four. Paragraphs sixteen, seventeen and nineteen are attacked in the brief, but no foundation for doing so is laid in the assignments of error. *728
All of these four paragraphs deal with the defendant's failure to make deliveries as required by the contract, and paragraphs sixteen, seventeen and nineteen lead up to and support paragraph twenty-four, which finds that at the time the plaintiff canceled the contract, defendant was unable to perform the contract on its part, and would have been unable to perform within a reasonable time thereafter. This latter finding is objected to as a finding made without evidence; but the slightest examination of the record shows that there was abundant evidence to support it, such as the continued failure of the defendant to approximate the contract rate of delivery; the admitted fact that fourteen months of strenuous effort, assisted at times by the plaintiff, produced a total net delivery of less than six per cent of the bullets contracted for; the fact that nearly one half of the bullets tendered for delivery were defective; that the dies and hammers were continually breaking down; and, finally, the statements already quoted from the defendant's letter of protest against the final cancellation of the order.
As against this mass of evidence justifying, if not compelling, the inference that the defendant's new and theretofore untried method of manufacture was inherently impracticable, or at least that the defendant was incapable of perfecting it within a reasonable time after August 8th, 1916, we are referred to a single statement of one of the defendant's witnesses, "We had our difficulties practically ironed out about the time the cancellation came in"; — a statement which, if well founded in fact, should have been made at the time of the cancellation, and which is quite inconsistent with the statements that were then made. On this state of the record and brief, the printing of the entire evidence was wholly unjustified. The requests for correction of the finding are denied. *729
The other reasons of appeal raise two distinct sets of issues, those relating to the action of the court in overruling the demurrer to the first and third counts of the complaint, and those relating to the judgment for the plaintiff on the first, second and third counts of the complaint and on the defendant's counterclaim.
The grounds of demurrer as pleaded, appear to be two in number: first, that it does not appear from the complaint and contract that the plaintiff had any right to cancel the unfilled portion of the order on account of the defendant's failure to make deliveries in accordance with the contract; and second, that by the terms of the contract the only remedy the plaintiff had for such a default by the defendant, was to take over the completion of the contract on the terms specified therein.
The second ground stated raises the question whether the provision giving the plaintiff, in case of defendant's default, the right to complete the contract at the defendant's expenses, is a remedy concurrent with or exclusive of the remedy in damages given by law. The question is one of the intent of the parties to be gathered from the contract. The agreement for a special remedy does not necessarily exclude the remedy in damages. In Shupe v. Collender,
In the present case there is nothing in the contract to indicate an intention to exclude the remedy in damages and confine the plaintiff, in case of a breach by the defendant, to the remedy by completion of the contract *730 at the defendant's risk. On the contrary, the words used indicate that the special remedy was optional and cumulative.
We need not pursue this branch of the discussion, for it is apparent that the second ground of demurrer does not touch the causes of action alleged in the first and third counts, because the plaintiff is not attempting to pursue its remedy in damages. The action is not grounded on the defendant's inability to make deliveries as required. True, that is alleged as the reason why the contract was terminated, but the reason is not important except so far as it was important for the plaintiff to allege that the contract was effectually, because lawfully, terminated. That having been sufficiently alleged, the plaintiff's cause of action, as stated in the complaint, is for money had and received and materials furnished for a special purpose which cannot now be carried out. What the plaintiff's remedy might be if another and different cause of action were alleged is immaterial.
It was apparently to meet this difficulty that the first ground of demurrer was stated in much broader terms: that the plaintiff had no right or authority to cancel the unfilled portion of the order in case of defendant's fault. Meaning that the plaintiff, in such case, must go forward and complete the contract at the defendant's risk whether it wanted to do so or not. That position is plainly untenable. Upon any construction of the contract, the plaintiff must at least have the right to put a stop to the further performance of the contract for good cause, upon the terms of waiving any remedy for the breach which the contract gives it. So far as this record discloses, that is what has been done. Similar provisions are commonly found in building contracts, but it has never been supposed that the owner might not, for good cause, eject the contractor and *731 leave the building unfinished, if he chose to take that course. The demurrer was rightly overruled.
Turning now to the assignments of error touching the judgment, most of them relate to the defendant's claim of law that the plaintiff having, for fourteen months, accepted deliveries at irregular intervals and at a rate less than the contract called for, had no right to peremptorily put an end to further performance by the defendant, on the ground of delayed deliveries, without first giving the defendant reasonable notice of its intention to demand a strict performance in the future. That is a sound proposition of law. In Grippo
v. Davis,
We hold that the plaintiff had no right to peremptorily cancel the unfilled portion of the order on August 8th, 1916, without first giving reasonable notice of its intention to insist on strict performance. The defendant then had the right either to acquiesce in the wrongful termination of the contract, and sue for damages, or to continue to make deliveries as before, subject to the plaintiff's right after notice to require a resumption of deliveries at the contract rate within a reasonable time. It seems at first to have adopted the latter course, for it continued for a time to make deliveries of bullets which were properly rejected as defective; but subsequently ceased deliveries, and by its counterclaim demands damages for the wrongful termination of the contract by the plaintiff. Assuming that the defendant has a right to recover such damages as it can prove, *733 it must first allege and prove that it was ready and able to perform the contract according to its terms within a reasonable time after August 8th, 1916, forGrippo v. Davis and the other cases cited, hold that the original terms of delivery are not abrogated, but only suspended, by an acquiescence in short and delayed deliveries. In Grippo v. Davis the plaintiff succeeded because he demonstrated his ability to perform within a reasonable time, by tendering the contract price within such time. In Hartley v. Hymans the plaintiff recovered damages, because the court found that he was able to perform within a reasonable time. In this case the court has found that the defendant was unable to perform when the order was canceled and would have been unable to perform within a reasonable time thereafter. That being so, the defendant has suffered no recoverable damage from being wrongfully deprived of an opportunity to do that which it was unable to do. The judgment on the counterclaim is supported by the facts found, and is not erroneous.
The next question is whether the plaintiff, having prematurely, and therefore wrongfully, canceled the unfilled portion of the order, is entitled to recover back the unapplied balance of money and materials advanced to assist in the performance of the contract. If the defendant were insisting on its right to perform the contract and were ready, able and willing to fulfil its agreements according to the contract, or within a reasonable time, the plaintiff could not recover. Hansbrough
v. Peck, 72 U.S. (5 Wall.) 497, 506. But the defendant was not able to perform, it has suffered no damage by the wrongful cancellation, it has definitely taken the position, by its counterclaim, that the contract has been terminated, and there is no provision in the contract for a forfeiture. Under these circumstances, the defendant has no legal or equitable right to *734
retain the unapplied balances of money and materials advanced by the plaintiff. Our rule on this subject was definitely laid down in Pierce v. Staub,
This rule is manifestly just. An executory contract cannot be terminated at the will of one of the parties. The other party may keep the contract open by insisting on his right to performance, provided he himself has performed or is ready and able to perform his own agreements. But if, as in this case, he is unable to perform, or if, as in this case, he elects to treat the contract as wrongfully terminated, the consideration for the advances has failed, either by mutual fault, or by mutual consent; and the money cannot in equity and good conscience be retained, except so far as may be necessary to satisfy a claim for damages for the wrongful termination.
The foregoing covers the ground necessary to the conclusion that the judgment is supported by the facts found, and as there are no assignments of error for rulings made on the trial, further discussion in detail of the alleged errors assigned is not deemed necessary.
There is no error.
In this opinion the other judges concurred.