Perlman v. M. Israel & Sons Co.

Froessel, J. In this action for damages arising out of the alleged breach of an agreement for the purchase and sale of a large quantity of “ sweater clips ”, defendant seller denies that there was a valid contract between the parties, and urges upon us a number of errors claimed to have been made by the trial court. Upon this record, it appears that the parties actually entered into an oral contract on or prior to November 22, 1950, and that the confirmatory letters exchanged between them, dated on that day, and which apparently crossed in the mail, were evidence of such contract, despite their variance from each other in two respects. Although the trial court correctly charged that these letters “ evidence a contract ”, it should not have excluded testimony of Sidney Israel, offered to show the conversation at the time the agreement was consummated. We are also of the opinion that the trial court’s instructions to the jury to the effect that plaintiffs were not bound to accept the goods allegedly tendered by defendant in December, 1950, so long as they were ready, willing and able to take and pay for them by the end of February, 1951, were confusing, to say the least. There was no evidence in the case — nor has any contention been made — that the goods were offered at an unreasonable hour of the day (Personal Property Law, § 124, subd. 4), or that defendant sought arbitrarily to put plaintiffs in technical default (Manners & Co. v. Hirshenhorn & Sons, 280 App. Div. 711) by demanding actual acceptance of the goods at the “ particular moment or at the instant defendant elected to offer them". The tender was allegedly made long prior to the expiration of the contract. The seller was not restricted to any particular day, but had the right to offer to deliver the goods contracted for at any time during the contract period (Curtiss v. Howell, 39 N. Y. 211; Bahnsen & Co. v. Leaf, 203 App. Div. 618; Morel v. *257 Stearns, 43 Misc. 639, 642 [App. Term]; Harman v. Washington Fuel Co., 228 Ill. 298, 301; see, also, Crown Embroidery Works v. Gordon, 190 App. Div. 472). If, therefore, the jury believes Israel’s testimony to the effect that defendant had tendered, and that the Perlmans had refused, delivery of the goods early in December, 1950, such a refusal would have been a breach of contract excusing defendant from further performance on its part (Jardine, Matheson & Co. v. Huguet Silh Co., 203 N. Y. 273, 280; Gourd v. Healy, 206 N. Y. 423; Dunham & Dimon v. Pettee & Mann, 8 N. Y. 508). The fact that the Perlmans may subsequently and before termination of the stipulated delivery period have been “ ready, able and willing to take and pay for ” the goods would not save their cause of action. The trial court also erred in precluding the witness Israel, who was obviously qualified as an expert, from giving testimony as to market value generally, and limiting him to actual purchases and sales of his own. There was no error in the court’s instructions with respect to the burden of proof. Plaintiffs, of course, had the burden of establishing that they were ready, able and willing to take and pay for the goods, as the court properly charged. Payment, however, was not required until the presentation of invoices by defendant. The latter, on the other hand, had the burden of establishing its affirmative defense that plaintiffs had rejected a valid tender of the goods, and, since it sought to be excused from its additional obligation under the contract of presenting invoices, it was necessarily incumbent upon it to establish plaintiffs’ anticipatory breach. As to the remaining points urged upon us in appellant’s brief, we find no prejudicial errors. The judgments appealed from should be reversed and a new trial granted, with costs to abide the event. Lewis, Oh. J., Conway, Desmond, Dye, Fuld and Van Voorhis, JJ., concur. Judgments reversed, etc.