3 Sandf. 230 | The Superior Court of New York City | 1849
The actions are brought on two executory contracts, the one dated on the 11th, and the other on the 17th June, 1847, each for the purchase by the defendant of fifteen hundred barrels of flour, at the rate of $8 37i per barrel, deliverable at the option of the seller, at any time, (half each month,) during the months of July and August. The actions are brought for the non-acceptance of the flour, when offered to the defendant.
By these memorandums of the defendant, a good executory contract was made by him to purchase flour at a specified price, payable on delivery, and we regard it as immaterial whether the plaintiff had an article of the kind on hand at the time of the contract, or was to procure it afterwards. Many moralists doubt the policy of permitting a party to contract for the sale
It is alleged that no sufficient delivery or tender was made of that flour. First. As to the fifteen hundred barrels to be delivered in July. It must be borne in mind, that the action is not
Considering the ponderous character of the article, we think here was a sufficient delivery or offer to deliver. At all events, enough to impose upon the defendant the obligation of saying where he wanted to have it delivered. But the character of the tender or delivery did not then seem to trouble him. He merely felt, or affected to feel, some concern about the quality or kind of the flour; but even his objections in this respect, he would not condescend to particularize. It was not incumbent on the plaintiff, especially when the defendant was so taciturn and mysterious, to roll out every barrel on the dock, or cart it to the defendant’s store or place of business. His whole conduct showed an unwillingness to receive and pay the contract price, and neither is the law, nor the custom of dealers in the article, so unreasonable as to require that the plaintiff should have gone through the expensive
We have thus far considered the case independently of any usage proved, or attempted to be proved, in reference to this article. We think, considering the ponderous nature of the article, that the defendant only urged the inferiority of the flour to the contract standard, and that he showed anything but a willingness to receive it; the tender of the fifteen hundred barrels deliverable in July was sufficient for the purposes of tMs action. The plaintiff, in law, and according to good morals, did enough to place the defendant in the wrong. The plaintiff showed a desire to fulfil, the defendant the opposite sentiment. The frankness and apparent anxiety of the plaintiff to deliver to the defendant the property according to the contract, were met by a most significant spirit of non-committalism, a spirit showing a design not to fulfil his contract, but by sldlM manoeuvre to
But the usage testified to, surely fortifies the plaintiff’s case. In Pleasants v. Pendleton, 4 Rand. 474, it was held that an established usage constitutes the common understanding of parties, and ought to be resorted to as the interpretation of the contract; and that an usage that flour in a store is sold by order, and passes by the transfer of the order from hand to hand, without actual delivery of the flour, is a reasonable usage, and ought to be enforced as part of the contract. There, too, the court received and sanctioned evidence as to cooperage, as to where and at whose expense it was done. Cabell, Justice, says that the usage of trade there proved, for flour in store to be sold by mere draft or order on the warehouse-man, and to pass through many hands before it is called for, is entitled to great consideration; that the usages of trade are presumed to enter into the contemplation of the parties to a contract, and that they are supposed to contract on their basis. See also as to usage, Bourne and others v. Gatliffe, 7 Man. & Grang. 851. According to the usage as testified, to by Cowing, Dows & Wolfe, the plaintiff placed himself in a right position. According to this testimony, particularly that of Cowing, it is the usage in the sale and transfer of flour in large quantities, for the seller to deliver to the buyer his orders, or the orders of some other person, on the barge or store where it may be. The buyer receives these orders, and then usually goes and looks at the flour. If it agree with the purchase, he takes it, and if not, he reports to the seller. If the flour is in barges, the practice is to cooper it at the time it is delivered to the cart. The usage proved, as to coopering, inspecting, and separating a smaller from a larger lot, favors and fortifies the plaintiff’s case.
As to the fifteen hundred barrels, deliverable in August, the plaintiff’s case is, if possible, stronger than the one proved in
Judgment for the plaintiff.