84 Misc. 2d 441 | N.Y. Sup. Ct. | 1975
This is an action upon stipulated facts to recover consequential damages for loss of profits claiming a breach of a futures purchase contract of 360,000,-000 yen for United States $1,018,710 entered into in April for October delivery in Japan and providing for an automatic
Although each party gives somewhat differing import to the contract of April 12, 1971 and to the currency regulation, it appears the agreement, drawn by defendant, was clear and unambiguous on its face in providing under paragraph IV that "if circumstances beyond our control should prevent delivery hereunder of all or any part of the Foreign Exchange within the time specified for the delivery thereof; the time of delivery shall be automatically extended three months and if such circumstances should at the end of that period continue to exist, the Foreign Exchange not therefore delivered hereunder may, at our option, be purchased by us from you at our then buying rate.”
In denying failure of performance of delivery, defendant contends options or tender of delivery were made, but rejected by plaintiff, thereby fulfilling defendant’s performance and excusing its nondelivery. A tender however under section 2-503 of the Uniform Commercial Code requires an offer and an ability to deliver. But defendant was incapable of delivery because of the intervening Japanese foreign currency regulations. The options offered plaintiff were comprised of various modes of substituted performance which in effect remake and vary the unambiguous terms of the contract.
Defendant argues that the time extension of paragraph IV was for its sole benefit and protection in the event of impossibility of performance of delivery, or as aptly stated in defendant’s brief, "to excuse nondelivery of the bank in the event its hedge position fails.” Defendant, as draftsman of its own remedy, therefore considered additional time as crucial to overcome its inability to deliver and resultant hardship of failure to hedge or the necessity to cut losses. Significantly on
It would seem that underlying the issue here was the bank’s failure or inability to hedge its position on or before the October maturity date and shifting its risks to the buyer by offering alternative substitutes of performance at the time of its nondelivery. The plaintiff’s rejection of the so-called options, defendant claims, demonstrates plaintiff’s bad faith breach of its ability to accept delivery. However plaintiff was not obliged to accept these modes of substituted performance either under the contract or under law.
Assignment of delivery to a third party in Japan to avoid the restrictive Japanese regulations on the bank’s ability to deliver to the plaintiff itself was a method of substituted performance proposed by the bank.
Although the contract did not specify to whom yen delivery was to be made, it did confer discretion on the plaintiff in this regard upon the October maturity date; which plaintiff exercised for its own account. But such proscribed delivery, defendant contends, could have been overcome had plaintiff accepted defendant’s substituted proposal to assign its yen rights. The availability and rejection of such substituted performance, defendant urges, excuses its nondelivery as called for under the contract. Where performance is impossible, a commercially reasonable substitute by buyer or seller excuses strict compliance with contract terms which do not go to the essence of the agreement. (Official Comment 1, Uniform Commercial Code, § 2-614.) The imposition upon plaintiff of a foreign yen assignment was neither a contractual obligation nor a commercially reasonable substitute. The contract failed to specify such an assignment although it could have been reasonably anticipated by the defendant draftsman for its own protection. It is axiomatic that a commercial contract will be
Defendant’s proposal to repurchase all or part of the undelivered yen before the expiration of the extended period refashions the contract for clearly under paragraph IV the exercise of this option was available to defendant only after the expiration of the extended period. Moreover, this contention renders meaningless the self-executing automatic extension provision of paragraph IV. Established rules of contract construction preclude such an interpretation. (Laba v Carey, 29 NY2d 302, 308.)
After defendant’s nondelivery, payment of a substantial premium of $59,000 or the market cost on the October maturity date, also proposed as a condition for extending time, was not expressly provided for under the contract and constituted a nonobligatory penalty. Moreover the heavy conditional cost imposed upon plaintiff was an unreasonable commercial substitute rendering section 2-614 of the Uniform Commercial Code inapplicable.
The time and place of delivery and to whom are material elements in the purchase of fluctuating market price currency futures. Therefore defendant’s unexcused failure to extend the contract and consequent nondelivery of yen to plaintiff in Japan on January 14, 1972, as called for under the contract, constituted the sole material breach.
Turning to the measure of damages, the buyer is entitled to the market price less the contract price at the time it learned of the breach together with any consequential damages. (Uniform Commercial Code, § 2-713, subd [1].) Consequential damages to which plaintiff would be entitled are defined under
As for the second condition under section 2-715 (subd [2], par [a]) of the Uniform Commercial Code requiring mitigation of losses, the plaintiff could only have "covered” at the time of the breach either by a repurchase of a three months’ futures contract absorbing its full profit, or by paying to the bank a substantial premium almost equalling its profit as a condition for the extension. In either event the expense of such cover would be unreasonable and unduly burdensome and constituted a good faith justification for plaintiff’s declination to undertake such expense.
Plaintiff calculates its compensatory damages by looking to its ultimate loss of profits; subtracting profits received from defendant on the October sale to those it would have received had yen been sold in January but for the breach. Accordingly, the plaintiff is entitled to a judgment in the sum of $59,000, plus interest from January 14, 1972.