Union Trust Co. v. Webber-Seely Hardware Co.

Hiel, C. J., (after stating the facts.) 1. It is contended that the “unavoidable contingency” clause relieved the Axe Company from an earlier fulfillment of the order. The evidence of the Axe Company, however, showed that it could have furnished the axes within a time satisfactory to the Hardware Company if the Hardware Company had accepted them in small shipments from time to time. Therefore the failure to have the goods delivered was due to the difference between the companies as to how shipments should be made, and not to the stress in the manufacturing of the goods. 2. Should the shipment have been in a carload or in smaller lots from time to time? The contract itself is silent; and as it is an entire contract, naturally it would be expected to be an entire delivery, if practicable. The Axe Company proved that in the trade such an order gave the manufacturer the right to ship from time to time. Conceding, without deciding, that the contract was sufficiently ambiguous or technical to let in an usage to explain it, the result is not affected. The price of axes was increasing, and the Hardware Company naturally wanted the contract fulfilled, but did not want to pay the additional freight required by reason of these small shipments. It insisted that it was entitled to a carload, and would not receive the goods otherwise. The Axe Company frequently offered the small shipments, but always promised a car later, and urged that the small shipments be accepted, as there would be so much delay in the car being furnished; indicating first early in the fall and then late in the fall before the car would be ready. Just as fall was about to turn into winter, the Axe Company discovers it never agreed to furnish the goods in a carload lot. All of this time the Hardware Company was refusing the small shipments to save freights, and waiting for the carload. The market had then risen. Clearly, the Axe Company could not at that late date change its course of conduct. 3. The order was an entire one, for the amount of goods therein specified at the prices therein named. The shipment, the settlement, the payment each refer to the order as a whole, and not.to fractions thereof. The Hardware Company had a right to exact a fulfillment of the Axe Company’s contract to deliver these goods before it made settlement therefor. If the Axe Company elected to deliver in various amounts and at various times, that could not affect the question of payment. The method of shipment in carload or smaller shipments only reached to the manner of delivery, not to the question of payment. Only after complying with its contract to deliver the goods bought could the Axe Company call upon the Hardware Company for payment. It called for payment of a part delivered, and refused to deliver the balance until this was paid. In this the Axe Company violated the contract. The Court of Appeals of New York placed the same construction on a similar contract. Nightingale v. Eiseman, 121 N. Y. 288. It results from these views that the judgment should be affirmed, and it is so ordered.