119 N.Y.S. 1025 | N.Y. App. Div. | 1909
Lead Opinion
On the first trial of this action the plaintiff had a verdict, the judgment upon which was reversed by this court on the ground that the evidence failed to show that any valid contract had been entered into- between the parties. (118 App. Div. 181.) On the second trial the complaint was dismissed. The judgment entered upon- the dismissal,was reversed by the Court of Appeals, which held that upon plaintiff’s evidence the- jury might have found that a valid enforeible contract had been made between' the parties. (195 N. Y. 63.) To this extent, therefore, the law of the case is settled. Again the plaintiff has recovered a judgment, and we are now called upon to consider questions not heretofore considered. The contract upon which plaintiff relies is claimed to have been made May 1, 1902, and provides for the sale by defendant to plaintiff of “ about 1,000 tons of broken coal per month for shipment previous to February 1st, 1903, at 3.90 per ton gross tons alongside within limits.” So far as it was written it was in the form of' a letter by plaintiff requesting defendant to enter an order as above. Ho written or other acceptance of the order was shown except that on May fifth and seventh defendant delivered to plaintiff 566 tons of coal. The plaintiff’s claim is that this coal was delivered in part fulfillment of the contract,
Assuming, however, that the jury was right in finding that there was such a contract it remains to consider the exceptions taken upon " the trial. The contract did not specify.the time or jfface of delivery or the( precise amount of coal to be delivered. All that it said about delivery is. that it .-was to be “ alongside' within limits.” .What this means is not made .evident by 'the contract itself, and is.no.t explained by the testimony. As to the amount the order is for “ about” 1,000 tons per month, with the following qualifications: • “ For the next three or four months I may not .be- able to take -my full monthly quota, but shall live up to my obligation as nearly as possible,” . Under tins contract the plaintiff was not bound to take
The true rule in such a case is that if plaintiff is entitled to recover anything it is the difference between the contract price and the market price of similar coal at the times when deliveries should have been made. As we construe the contract,-a demand was necessary to put plaintiff in default as to the deliveries to be made in any month. As to any month in which no demand was made, the plaintiff cannot recover at all, for the contract -was not for 9,000 tons to "be delivered in installments, but for 1,000 tons per month. Each month, therefore, stands by itself, and if delivery during any month was excused or waived, the defendant could not be compelled to make up the amount by delivering more than 1,000 tons in a succeeding month,
Ingraham, Laughlin and Houghton, JJ., concurred; McLaughlin, J., dissented. .
Dissenting Opinion
The Court of Appeals, on the former appeal in this case, held that a grima facie case was made for the jury, and reversed this court and ordered a new trial. (123 App. Div. 923; revd., 195 H. Y. 63.)
. The evidence introduced on the last trial was substantially the same as that on the former. - The case was, therefore) properly sent to the jury, and the verdict cannot be said to be against the weight of evidence. :
I vote to affirm the judgment, with costs.
Judgment and order, reversed, new trial ordered, costs to appellant to abide event.