187 A.D. 548 | N.Y. App. Div. | 1919
This is an action for damages arising out of the failure of the defendant to deliver certain blue serge cloth pursuant to an agreement, in writing, made between the parties on the 26th day of April, 1916. It is recited in the contract that the defendant, who was doing business under the name of Henry M. Huebshman & Company, acted as the direct selling agent for the manufacturers of the goods in question. But the contract was not made by the defendant as agent, and his principal was not disclosed and no claim is made
The defendant pleaded, in effect, that the determination of the amount of credit by the factors was given to them for the reason that the factors guaranteed the credit risk and the payment of the bills by the plaintiffs. The respondents concede in their points that the factors guaranteed the credit risk and the payment of the bills of all who purchased merchandise from the defendant, and determined the amount of credit to be given to any person dealing with the defendant, including the plaintiffs; but the only evidence received on that subject is to the effect that the goods are consigned to the factors who advance money thereon and guarantee the credit after approving the credit. The defendant, however, offered specific evidence of such guaranty in this instance which was excluded on objection interposed by plaintiffs that it was immaterial, irrelevant and incompetent. Since, however, the plaintiffs fully concede the facts, they may, in the circumstances, be deemed established.
At the time this contract was made there was pending unfinished business between the parties under a similar contract designating the same factors. Prior to the 7th day of September, 1916, the defendant delivered to the plaintiffs 6,326% yards of the goods under the contract in question. He failed and refused to make any further delivery and this action was commenced ón the 15th day of June, 1917, to recover the difference between the contract price and the market price of the goods in September, that being the time when the deliveries were to be completed. The contract contained no provision with respect to the quantity to be
On the 6th day of September, 1916, the plaintiffs ordered a case of these goods of the defendant; the order was referred to the factors which was the regular course of business. Siegel testified that the day after .that order was given, Huebshman, the creditman of the factors, called him on the telephone and told him that they were not going to give him any more goods excepting for cash because he was not a satisfactory customer; that he asserted that he did not owe the factors anything at that time, and asked how it could be claimed that he was not a satisfactory customer, to which he says
Huebshman, the creditman of the factors, testified that he complained to the plaintiffs several times during July and August with respect to these overdue accounts and urged them to pay promptly, and on the seventh or eighth of September notified the plaintiff Siegel that owing to the fact that the payments were not being made until about three weeks after the
It further appears that the defendant within the contract period offered to deliver the balance of the goods to the plaintiff for cash with a deduction of six per cent for the credit period contemplated by the contract, and this the plaintiffs declined. The plaintiffs sustained no recoverable damages, even if the defendant had been guilty of a breach of the contract in refusing to deliver the goods on credit, even though the price at which defendant offered the goods was less than the market price for it was not shown that they were unable to pay cash, and, therefore, it is not necessary to decide whether that would have warranted such a recovery. (Warren v. Stoddart, 105 U. S. 224; Lawrence v. Porter, 63 Fed. Rep. 62.)
The recovery could not be permitted to stand in any event on account of errors on the trial and in the submission of the case to the jury. The court left it for the jury to determine whether the credit to the plaintiffs was withdrawn in good faith. On that issue evidence had been received over the defendant’s objections and exceptions showing that credit had been extended to the plaintiffs by other firms, and the extent thereof and that the plaintiffs subsequently paid in full. If the defendant were responsible for the action of the factors in terminating the credit, and the right to terminate it depended on the good faith of the factors, the testimony received would have been incompetent on that issue for their good faith could not depend on the judgment of or risk taken by others over whom they had no control. The
It follows that the implied finding that the defendant was guilty of a breach of the contract, and the judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., Dowling, Page and Merrell, JJ.,concurred.
Judgment and order reversed, with costs, and complaint dismissed, with costs.