139 A. 276 | Conn. | 1927
Determination of all of the assignments of error relating to both the decision on the demurrer and the judgment rendered, as the plaintiff aptly concedes, turns upon the construction and effect accorded the contract of March 17th, 1926, which will be hereinafter referred to as the "second contract." The prior (February) agreement will be designed as the "first contract."
The first ground of the demurrer to the second defense and all of the grounds of the demurrer to the third defense, were to the effect that it did not appear therein that the second contract was accepted in satisfaction of the first, but did appear that the first should be discharged *44
only upon the performance of the second. The other ground of demurrer to the second defense was, that the allegations of paragraph five thereof constitute conclusions of law only. As to this, the court correctly ruled that all of the allegations of this defense, including those of paragraph five, presented issues of fact.Blakeslee v. Water Commissioners,
All of the other grounds are based upon the general theory and contention that the second contract contemplates an accord and satisfaction, which could become completed and terminate the obligations of the defendant under the first contract only by complete performance according to its terms, instead of being, as the defendant alleged and claimed, a complete substitute for the first contract, which rescinded and superseded the latter and became the only agreement between the parties on the subject, its effect in extinguishing the first contract being in no way dependent upon whether the second contract was afterward completely performed by the defendant. The same question is presented by, and its determination is decisive of, the appeal on the merits — that is, whether, as the court held, both on the demurrer and in rendering final judgment, the second contract is to be regarded and given effect as such a substitute contract, or, on the other hand, amounts only to an executory accord, lacking, by reason of alleged failure to perform by making payment on presentation of invoices, the concomitant of satisfaction necessary to abrogate the rights of the plaintiff to rely and recover upon the first contract.
The court, in adopting the first of these alternative contentions, refers to the transaction as a "novation," which term is usually used with reference to instances in which a new party is introduced into the new contract, while "substitute contract" is the designation *45 commonly employed to cover agreements between the same parties which supersede and discharge prior contract obligations. 3 Williston on Contracts, § 1865. There is, however, no distinction so far as concerns the legal effect.
We think that the language of the second contract is, of itself, clearly sufficient to place it in the category of substitute contracts. Its plain intent and effect are that instead of the February arrangement, therein described, by which the plaintiff agreed to sell and the defendant agreed to buy the specified quantity of coke at $12 per ton delivered at Hartford, the same parties agreed to sell and to buy, respectively, a like quantity but at a price of $6.50 per ton (instead of the $12 called for by the first agreement) delivery to be at New Haven (instead of at Hartford), and making provisions concerning payment of freight, division of demurrage, and other incidents of the transaction not present in the first agreement. Being thus "made by the same parties . . . but containing terms inconsistent with the former contract, so that the two cannot stand together," it exhibits the characteristics, and responds to recognized tests, indicating a substitute contract. HousekeeperPub. Co. v. Swift, 97 F. 290, 294; 3 Williston on Contracts, § 1826. Furthermore, we think that an intent that the agreement to so sell and buy, on the substituted terms, shall discharge the prior contract and all claims and demands growing out of it, is unmistakably expressed by the language used.
The nature and effect of the second contract as alleged and claimed by the defendant is, therefore, borne out by the writing itself, to the exclusion of the interpretation claimed by the plaintiff and upon which the efficacy of its demurrer depends. Valente v.Chieppo,
The further allegations of the third defense and the facts found to have been proven thereunder are also consistent with and tend to confirm the defendant's claim of substitute contract.
The legal presumptions and rules applicable to such a situation as is here presented also lead to the same conclusion. As a general rule, when the new contract is in regard to the same matter and has the same scope as the earlier contract and the terms of the two are inconsistent either in whole or in a substantial part, so that they cannot subsist together, the new contract abrogates the earlier one in toto and takes its place, even though there is no express agreement that the new contract shall have that effect. 3 Elliott on Contracts, § 1865; 3 Williston on Contracts, § 1826, p. 3145; 4 Page on Contracts, §§ 2494, 2495; 13 Corpus Juris, p. 603; 6 Ruling Case Law, p. 923; 22 Amer. Eng. *48
Anno. Cas. p. 1258. Of the numerous cases supporting this proposition, Goebel v. Linn, supra; United Statesex rel. International Contracting Co. v. Lamont,
The Connecticut cases cited by the plaintiff as instances of unexecuted accord are not inconsistent with this rule, but, instead, illustrate its recognized limitations. In Goodrich v. Stanley,
The situation here is much more analogous to that alleged in Blakeslee v. Water Commissioners,
The facts which the plaintiff seeks to have added to the finding, and which are not already found and on the evidence of record might properly have been inserted, are details of circumstances attending the drafting of the agreement on March 17th; that, in addition to the invoice of March 27th, found by the trial court, the plaintiff, on March 8th, sent defendant a bill for fifteen hundred tons of coke at $12 per ton, and on March 19th mailed an invoice for 1,499.7 tons at $12 per ton, with an accompanying credit memorandum for $5.50 per ton; that the defendant obtained information from the Hartford freight agent, only, as to the accuracy of the weight shown by its freight bills, which totaled 9,900 pounds less than the weight taken at New Haven and at which it was billed to defendant. None of these facts would affect, to the plaintiff's advantage, the construction which we put upon the second contract, and so, as the case stands, there is no occasion to add them to the finding. Beach v. First National Bank,ante, pp. 1, 4,
The demurrers were properly overruled and the only cause of action available to the plaintiff was that set up in the second count of its complaint, upon which judgment, correct in amount, was rendered.
There is no error.
In this opinion the other judges concurred.