Martinez v. Earnshaw

Opinion, Mu. Justice Green: In this case judgment was entered against the defendant for want of a sufficient affidavit of defence. The facts set forth in the affidavit are„to be taken as verity, and we have nothing before us but the plaintiff's’ statement and the defendant’s affidavit. The statement contains the contract upon which the action is founded. By the explicit terms of the contract, the plaintiffs sold and the defendant bought “ dry iron ore,” of usual quality, “ guaranteed to contain fifty per cent of iron in the natural state, with a sliding scale at the rate of three pence per unit additional for every unit over fifty per cent, and with a deduction at the rate of four pence per unit for every unit under fifty per cent.” The affidavit alleges that the first deliveries under the contract contained, one of them, 48.747 of metallic iron in the natural state and .038 of phosphorus, and the other contained 49.40 of metallic iron in the natural state and .030 of phosphorus, and that as soon as this was discovered the defendant repudiated the contract and refused to receive any more ore under it. As to all other matters contained either in the statement or affidavit, some of which involve considerations of fact and may possibly on a trial control the result, we can have nothing to say, and of course cannot determine either positively or inferentially. As the affidavit contains a positive averment that the ore delivered did not contain fifty per cent of metallic iron in its [486] natural state, a breach of the guaranty is asserted. This breach may or may not be vital to the plaintiffs’ right of recovery. Possibly the variation from the percentage of metallic iron required by the contract, may be so slight as that the ore delivered may be a substantial compliance with the contract, or a compliance which the law, when better informed by testimony, may regard as adequate. But we cannot know that now, and we can only deal with the breach of a condition which the purchaser required by the terms of his obligation. Technically, guaranties demand literal performance. Such is the prima facies of the engagement. It is not for courts to know, as matter of law, whether there are or may be considerations extrinsic the written stipulations of the parties which may excuse a literal compliance with them. It is enough for present purposes to say that we do not find any matter in the contract itself which necessarily has that effect. The suggestion that a sliding scale is provided, for an allowance for an excess of iron and a diminution for a deficiency, is not controlling. Apparently that provision creates nothing more than an option, but does not mitigate the rigidnebs upon which the purchaser may insist if- he chooses. Possibly a trade custom or other legitimate facts may affect the determination of the purchaser’s strict right. But we cannot either hear or decide them now. We know at this time only that a literal breach by the plaintiffs is alleged and claimed, and a literal breach is enough to defeat a compulsory judgment without a hearing. It seems to us that, if the defendant proves the facts set out in his affidavit, the burden will be cast upon the plaintiffs to relieve themselves from the imputation of a breach, and that consideration is enough to carry the case to a jury. Judgment reversed and procedendo awarded. On January 4, 1892, a motion for a re-argument was refused.