Mercer Tube & Manufacturing Co. v. American Zinc Sales Co.

Dore, J. There were three written contracts between plaintiff, at the time in the hands of a receiver, and defendant: (1) The contract of December 21, 1936, for 500 tons of zinc at $5.55 per cwt., shipment during the second quarter of 1937; (2) the contract of December 30, 1936, for 300 tons of zinc at $5.55 per cwt., shipment of 100 tons in April, May and June, 1937; and (3) the contract of January 8, 1937, for 2,000 tons at $5.80 per cwt., shipment of 500 tons per month during July, August, September and October, 1937. Plaintiff sued for breach of the first two contracts. Defendant counterclaimed for repudiation under the first two contracts and for failure to accept the balance under the third. It is conceded there were modifications with regard to the time of the shipments under the December contracts; deliveries thereunder were postponed from time to time by agreement of the parties and up to July 12, 1937, but fifty tons of zinc had been delivered. The trial justice, who saw and heard the witnesses, stated that he believed the testimony of defendant’s witness Dodd as against that of plaintiff’s witness Greenberg. This conclusion as to credibility should not be disturbed. It follows that the shipments under the December contracts were deferred at plaintiff’s request for delay in delivery; and that the arrangements indicated by defendant’s letter of April 19, 1937, were superseded by the arrangement, outlined in the testimony of Dodd relating to the conversation held by him with Greenberg on June 25, 1937, and evidenced by the letter dated that day signed by plaintiff and accepted in writing by defendant, under the terms of which the parties expressly agreed “ that handling of further quantities of all three contracts will be discussed the latter half of next month.” Plaintiff, therefore, had no right to insist on delivery of 1,650 tons in August under the contracts as modified with respect to the quantities deliverable under the three contracts. It might have been entitled to have defendant prorate the tonnage deliverable each month between the December contracts and the January contract. Plaintiff did not request prorated installment deliveries under each contract but lumped the total tonnage and demanded deliveries against such total. Defendant was under no obligation to deliver 1,650 tons in August as demanded. The third contract called for delivery of 500 tons in August. The times fixed in the other two contracts had passed; deliveries thereunder had been postponed by mutual agreement; and the December contracts under which deliveries were postponed were by their terms and still remained installment contracts. [509] When plaintiff before the time agreed upon in the letter of June 25, 1937, and without any discussion as required by the agreement evidenced by that letter, arbitrarily on July 12, 1937, demanded the entire balances under the December contracts and installments under the January contract, requiring delivery of 1,650 tons in the month of August alone, plaintiff’s demand was unwarranted and unreasonable, and the trial court properly found that plaintiff breached the December contracts and should not recover thereon. But before defendant could hold plaintiff for its breach under the December contracts, defendant should have tendered some deliveries thereunder. As no time was then fixed for delivery, defendant was bound to deliver the tonnage under those contracts within a reasonable time. (Pers. Prop. Law, § 124; Mutual Chemical Co. v. Marden, Orth & Hastings Co., 235 N. Y. 145, 150.) The record establishes that defendant made no offer or attempt to complete any deliveries under the December contracts until it had completed or offered to complete deliveries under the January contract. Defendant, therefore, failed to make deliveries under the December contracts within a reasonable time and the trial court was correct in holding that defendant’s counterclaims in respect to those contracts should not be sustained. Neither party, therefore, tendered performance of the December contracts, as modified, with respect to installment deliveries, and neither may recover damages for breaches thereof. Plaintiff did not sue under the January contract but accepted and paid in full for 1,850 out of 2,000 tons delivered thereunder at the price called for therein. Defendant, in so far as it was possible, performed the January contract, making deliveries in a reasonable time, all of which were accepted and paid for by plaintiff; and defendant offered delivery of the balance under the January contract. Plaintiff is accordingly answerable to defendant for its refusal to accept the balance of 150 tons under the January contract and defendant is entitled to recover the damages under the third counterclaim based upon that contract. It was stipulated at the trial that the damages under this third counterclaim amounted to $2,400 with interest, which defendant is entitled to recover. The order permitting defendant to amend its answer was in effect an order granting defendant leave to amend so as to conform the pleading to the proof which had been submitted at the trial without objection from either party, and in view of the facts disclosed in the record the order was proper and should be affirmed, with twenty dollars costs and disbursements to the defendant. [510] The judgment appealed from should be modified by granting defendant judgment on its third counterclaim for $2,400 with interest, and as so modified affirmed, with costs to the defendant. Martin, P. J., and Callaban, J., concur; Glennon and Cohn, JJ., dissent.