130 Va. 484 | Va. | 1921
delivered the opinion of the court.
This is a proceeding in the form of a motion for a judgment on the part of Frederick J. Fawcett, a commission merchant and jobber of the city of Eoston, against the Eichmond Leather Manufacturing Company, a concern making rawhide shoe laces and other leather products in Eichmond, Virginia. The action is to recover damages alleged to have been suffered by the plaintiff by reason of the alleged defaults of the defendant in respect of the delivery of certain rawhide shoe laces to the plaintiff, pursuant to contracts between the parties.
There are four orders in controversy. These orders were given by Fawcett to the defendant as follows:
Order No. 4026, of July 14, 1917.
Order No. 4033, of July 16, 1917.
Order No. 4092, of August 3, 1917.
Order No. 4194, of August 31, 1917.
There was a prior order, but deliveries under the same were completed, and while it is referred to in aid of the ascertainment of the precise contract between the parties' With respect to orders 4026 and 4033, it is not in issue.
“Order.
“Put this number on invoice — 4026
“Boston, July 14, 1917.
■“Messrs. Richmond Leather Company, Richmond, Ya.
“Please deliver to Frederick J. Fawcett, 132 Lincoln street, 58,000 36" 3-16 rawhide laces, $0.78 per hundred feet. Confirmation of wire of even date of which we send you enclosed copy.
“Terms: 2% 60 days, F. O. B. Boston.
“Frederick J. Fawcett.”
Order 4026 was for 58,000 36" 3-16 rawhide laces, orders 4033 and 4092 were, respectively, for 116,000 and 200.000 of same, and 4194 was for 500,000 laces, 7-32 30" 1-8.
Plaintiff’s claim for damages was for 38,000 laces undelivered on order 4026, 116,000 undelivered on order 4033, 200.000 undelivered on order 4092, and 339,000 undelivered on order 4194.
The jury returned a verdict in favor of the plaintiff in the sum of $3,905.95. This verdict the defendant moved to set aside on various grounds, but the court overruled the motion. Thereupon, the defendant applied for and secured a writ of error to the judgment of the trial court.
The plaintiff in error assigns as error the action of the trial court in various particulars.
I. “In not sustaining the demurrer to the notice, and motion to quash the same.” This assignment is not insisted upon, and further it does not seem to be well taken.
The admission of this testimony was not error.
III. “In permitting the plaintiff to introduce a letter of Geo. F. Smith, of the committee on supplies of the War Industries Board, Council of National Defense.”
This letter was properly admitted.
The evidence as to the contract of re-sale for the laces covered by order 4020, which- was discharged in full, was immaterial. The evidence as to the contracts of resale made by Fawcett for the laces covered by orders 4026, 4023 and 4194 was proper. Fawcett was entitled to show that he' had contracts for resale of these laces, and the terms of these contracts, as evidencing the damages he had suffered by the defendant’s failure to complete his deliveries. The defendant was aware that the purchases were made for resales. It was not entitled to be apprised of the details of these contracts of resale, the persons with whom they were made, and the terms of such resale, at the time that it made its contracts with the plaintiff, unless these resales had been for exceptional and unusual profits. This does not appear to have been the case in reference to the market price of laces in Boston. Hence, it was in no wise material
V. “In giving the instructions asked for by the plaintiff, any or either of them.”
VI. “In refusing to give instructions asked for by your petitioner, or any of them.”
VII. “In refusing to modify the instructions given for the plaintiff, one to four, any, or either of them, by adding thereto the following clause: ‘Unless the jury shall believe from, the evidence that the plaintiff by his conduct or course of dealings waived his right to demand deliveries as called for in the contract.’ ”
VIII. “In refusing to set aside the verdict of the jury and award a new trial on account of various errors assigned, and because the verdict was contrary to the law and the evidence.”
Assignments 5, 6, 7 and 8 raise questions which we will now proceed to' consider.
‘ A material ground of defense relied upon by the defendant is that whatever may have been its defaults, in respect of delivery, “the plaintiff had waived the strict performance of the contracts, as to deliveries (regardless of what
In Robinson v. American Locomotive Co., supra, the court said, at p. 591 of 56 Misc. Rep., at p. 71 of 107 N. Y. Supp.: “The requirement of defendant that the shipment should be ‘the earliest possible,’ must be construed as meaning that the goods should be sent as soon as plaintiff could possibly send them, and signified rather more than that the goods should be sent within a reasonable time.. It was what may be called “a hurry order.”
Delivery of the laces covered by order 4194 was to begin at once, and continue until completion, at a minimum rate of 25,000 a week.
The instructions given by the court seem per se to have been correct. The defendant was behind in deliveries from the very beginning of its contracts. In its first letter to Fawcett, seeking a contract, of date May 28, 1917, it wrote that if it could secure a contract, shipments could begin “right after receipt of the order, and continue at the approximate rate of 30,000 a day.” Later, after some tentative telegrams between it and Fawcett, rélating to an order for laces which was subsequently fixed at 200,000, it wrote-
On July 16, the plaintiff wrote the defendant, in part, as follows: “From your wires and telegrams, we understand that you will begin shipping us 50,000 laces per week, beginning August 1st, and will continue to ship at that rate, or better, if possible, until our orders are completed. * * * It is very important that you should keep up these deliveries, as these goods are for army shoes, and we must be able to fulfil our contract.” On August 3rd, the plaintiff wrote to the Leather Company, in part, as follows: “It is absolutely necessary that you should begin deliveries at once on our orders, of at least 75,000, or 100,000 per week. If you have not already made us a shipment, will you kindly make us an express shipment of 25,000, and advise us just how many per week you are going to ship, and by what way.”
From this time forward, the plaintiff continued to press his demands for better deliveries with increasing insistence. He refers time and again to ■ defendant’s letter, and later to its personal assurance, touching a delivery of 50,000 laces a week, and “better if possible.” These references are found in the plaintiff’s letters of August 10, August 21 and August 27, and in other letters later. On August 31, plaintiff placed the order for 500,000 7/32-30" % laces to be shipped at the rate of at least 25,000 a week. Complaint with respect to delay in deliveries under this order began as early as September 7, 1917. In addition to his letters, plaintiff made various trip's to Richmond to see defendant in person, and urge expedited delivery. The defendant’s response to this stream of complaints by letter and telegram, was a series of explanations and assurances of better service. At no time does it appear to have denied the plain
On December 11, 1917, Mr. Gay, of counsel- for plaintiff, wrote to the Leather Company, confirming his conversation of even date with Mr. Lyons, secretary of said company, directing it to discontinue further shipments under the orders for 36" 3/16 rawhide laces. Further shipments were made thereafter, received and paid for, of 7/32 x 30 laces. On February 14, 1918, Mr. Gay, as per instructions of his client of even date, wrote to the Leather Company, notifying it that Fawcett would not accept further shipments of laces “in view of the continued default of the company in complying with its agreement with respect to delivery.” The company was advised in the same letter that Fawcett’s action was without prejudice to his rights, to hold it responsible for its failure to comply in all respects with the terms of its contract.
Prior to the letter of February- 14, supra, the Leather Company had written two letters to Fawcett of date February 9, 1918. In the first letter, among other things, it said: “We do not want to hurry you, but we will have to ask you to let us hear from you in regard to the 3/16 by 36 inch and the 7/32 by 30 inch due you, or else the
This second letter concludes with this sentence: “With kind regards, and again asking you to let us hear from you as to cancelling or shipping the balance of your order.”
Prior to the foregoing letters, the plaintiff and Lyons had an interview on November 3,1917, in the office of the latter, relating to delivery and other matters. Lyons gives this account of the conclusion of the interview: ‘T said, ‘Mr. Fawcett, let me understand you, if you have any idea of bringing a suit for damages, we must stop right here, and meet the issue. I will meet the issue right where it is, before I ship you any more laces, if you have any law suit in view,’ and he said, ‘Well you are going to do better for me, aren’t you ?’ I laughed and said, ‘Mr. Fawcett, I think I can do better for you, because the leather is in sight now for the two or three months’ supply.’ It was in process — it akes about fifty days in process — and I said, T have got nearly two months’ supply of leather suitable for your purposes in process ; but,’ I repeated, T cannot ship you any more if there is going to be any suit; I would rather meet the issue now than get deeper into it.’ And he then agreed that he would not sue, but we were to go along, and ship him some more, and I went along and shipped him faster than before. I shipped him almost daily during November and December, not daily, but frequently each week. But I said to him, ‘If
“Q. And he said there would not be any?
“A. He told me to continue shipments, and there would not be any law suit.
“Q. Did you then act on the understanding you had?
“A. Yes, the understanding was entirely satisfactory to me, and our relations were as cordial as they ever had been. I never had the slightest idea of a law suit, not the most remote.
“Q. You continued the shipments up to the time shown on the paper?
“A. Yes, sir.
“Q. And I think you ceased to make shipments because of the request contained in some letter, or telegram?
“A. Yes, sir, not to ship any more.”
In respect to the foregoing statement of an agreement, Mr. Fawcett, when recalled, stated: “I don’t remember distinctly what did happen (i. e., between him and Mr. Lyons); I know I never did in any manner, shape, or form, waive any order.” He states further that the object of his trip to Richmond “was to impress upon Mr. Lyons the great need of getting more laces, and keeping up to what he promised on the orders.”
On January 28, 1918, subsequent to the foregoing inter-, view and prior to the letters of February 9, the Leather Company wrote Fawcett as follows:
“We wrote you several days ago that we had an especially nice lot of leather coming through, suitable for 7/32 shoe laces and can ship you 10,000 per day, and asking you how many we should ship, but have had no reply. If you desire us to ship any more of these laces, please wire us on receipt of this how many you desire, and we will ship 10,000 a day. Please wire us, and oblige.”
*498 “Q. Were you able to comply with your proposition thereafter?
“A. Yes, sir, because leather was running good for this purpose after that.
“Q. Did you get any reply to that letter?
“A. No. sir.”
Subsequent , to the interview of November 3, and the letter of December 11, the Leather Company made a number of deliveries of 7/32 laces.
From the foregoing citations from the record, and many others that might be made, it very clearly appears that the plaintiff time and again accepted and paid for deliveries that he might have refused, though all the while insisting upon better deliveries. This acceptance of delayed deliveries continued to January 21, 1918.
In Reid v. Field, 83 Va. 26, 1 S. E. 395, the defendant, Field, contracted with the plaintiff, Reid, for ten tons of fertilizer to be delivered promptly on or before September 22, 1880, for use in seeding the former’s wheat. Prompt delivery was delayed by the fertilizer company, but was accepted by the defendant, who gave his note therefor five or six weeks after September 22 — that is to say, five or six weeks after the alleged breach of the contract. When sued upon this note, the defendant set up in a special plea the defense
To the above effect the court also cites Hare on Contracts: “Waiver is a renunciation of some rule which invalidates a contract, but which having been introduced for the benefit of the contracting party, may be dispensed with at his pleasure.” Hare, 272.
Concluding, the court said: “In this case, the defendant in error, after the alleged breach of the original agreement by the plaintiff in error (Reid), by accepting a substituted performance, and by his subsequent promise, waived the protection given by law, and relinquished his right to rely upon the rule provided for his protection.” Id., 83 Va. p. 33, 1 S. E. 400.
In the case of Miller & Co. v. Lyons, 113 Va. 275, 74 S. E. 194, it appears that one Lyons, during a series of years, was the purchaser, upon margins, of stocks through the firm of Miller & Co., stockbrokers. The contract between the parties was as follows: “It is understood that on all marginal business, we (i. e., Miller & Co.) reserve the right to close transactions for your account, without further notice, whenever your margins are running out, and to settle contracts in accordance with the rules and customs of the New York Stock Exchange.” Upon the purchase of stocks on Lyons’ account, Miller & Co. would issue to Lyons a receipt containing, among other provisions, the following: “If the said Miller & Co. shall at any time, for any reason, deem the said margin insufficient, then the said Miller & Co. may close any, or all, of such transactions without demanding further payment, or additional security, * * * and may sell any securities held as collateral on the New York Stock Exchange, etc., or elsewhere, at public or private sale, without demand or notice.” Miller & Co., on July 26, 1910, sold certain stock of the plaintiff on a declining market, without notice to said plaintiff. Thereupon, Lyons brought an action for damages against the firm, and secured a verdict for .$7,145.00. The contention of Lyons was that during a course of dealing of more than four years between him and Miller & Co., the latter had not exercised, or claimed, the right to close transactions without notice to him, and an opportunity to deposit further margins, and hence was
Further, the court said, citing Bower v. McCormick, 64 Va. (23 Gratt.) 310: “That covenants and stipulations made by a covenantor for his benefit may be waived by him, either by express terms or by a course of dealing, is a well-established principle in every system of enlightened jurisprudence. That a covenantor by his conduct may so lull his covenantee into a sense of security as thereby to estop himself from the exercise of a right for which he had contracted, is equally clear. Instances illustrating this principle abound in the law with reference to contracts of insurance, but its operation is not limited to any specific class of contracts, and dealings between men. Such estoppels are founded upon principles of morality and public policy; their object being to prevent that which deals in duplicity and inconsistency.”
The trial court in the case cited ubi supra, instructed the jury fully as to waiver of right by express agreement, or by a course of dealing, and these instructions were approved by the court. The plaintiff in this case, like the de
The case of Norfolk Hosiery Co. v. Aetna Hosiery Co., 124 Va. 221, 98 S. E. 43, was an action for damages for the failure of the Norfolk Hosiery Co. (the defendant) to take' certain goods ordered from the plaintiff (the Aetna Co.). The question of waiver arose in this case by reason of the conduct of the defendant. The defendant claimed that the plaintiff was bound to begin deliveries on February 1, 1915, and that its failure to carry out the contract in this respect gave it (the defendant) the right to rescind. There was evidence in the case tending to show a waiver of this provision of the contract. The defendant assigned as error the action of the trial court refusing to give an instruction which, in substance, told the jury that if the plaintiff was bound to begin delivery on February 1, 1915, and it failed to do so, and such failure continued to February 23, the de-. fendant had the right thereupon to notify the plaintiff not to ship any goods thereafter, and such action on its part did not constitute a breach of the contract. Neither this instruction, nor any other in the case, dealt with the subject of waiver.
In support of the foregoing propositions, the court cited Frost v. Knight, L. R. 7 Ex. 111, and Bernstein v. Mesch, 130 N. Y. 352, 358, 29 N. E. 255, 256. In Frost v. Knight the court said: “The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party, as well as his own; he remains subject to all his own obligations arid liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it,
The case of Eichelbaum v. Klaff, 125 Va. 98, 99 S. E. 721, was a controversy arising under a written contract between the parties by which Klaff, the defendant, undertook to deliver 1,000 tons of scrap iron to Eichelbaum in from ninety to 100 days. This undertaking Klaff failed to carry out. Thereupon Eichelbaum brought his action for breach of contract. The defense set up was that the plaintiff had waived his right with respect to the time of delivery, and that following such waiver the defendant was proceeding to make deliveries when, without notice, the plaintiff refused to accept further deliveries. The issue of fact was submitted to the jury, which found in favor of the defendant. The plaintiff brought error. This court held that as a general proposition in contracts for the delivery of goods, time is not of the essence, and further that when by contract delivery is made imperative by a certain date, “the vendee may waive it expressly, either in writing, or by parol, and impliedly by inconsistent conduct.”
The court approvingly cited the following definition of waiver from Bishop on Contracts, section 72: “Waiver is-where one in the possession of any right, whether conferred by law or contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right, or of His intention to rely upon it; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterward.”
*509 “Examination of F. J. Fawcett.
“Q. If you had not gotten instructions from your customers, you would not have cancelled the contract, would you?
“A. I would not have cancelled the contract if they had not cancelled it with me.
“Q. That is what I understand. Then you kept receiving shipments, and kept the contracts alive, until that date, for those reasons, that is right, is it not?
“A. Yes, sir.”
The court instructed the jury fully and accurately as to the rights of the plaintiff under the original contracts, unmodified and unaffected by the course of dealing between the parties, but these instructions wholly ignored the evidence tending to show a waiver of his rights by the voluntary action of the plaintiff.
An instruction should have been given defining waiver, how effected, and its consequences, and instructing the jury as to their duty, should they determine from the evidence that a waiver had actually taken place. Instruction number four, in the record, tendered by the defendant and rejected, would be a proper instruction if accompanied with a preceding paragraph defining waiver and how the same may be effected. And further, it would be better to add to instructions one to four, for the plaintiff, the words “unless the jury shall further believe from the evidence that the plaintiff waived his rights as set out in the instructions for the defendant,” or words to that effect.
For the reasons stated, we are of opinion to set aside the verdict and judgment under review, and award a new trial, to be proceeded with not in conflict with the views expressed in this opinion.
Reversed.