Town v. Jepson

Carpenter, J. On the 28th of September, 1898, the parties to this suit entered into a written contract, reading as follows: . “ Witnesseth, that the said Jepson Bros, hereby agrees to deliver and sell, and does sell, unto the said L. S. Town, 7£ tons of good, prime, wood-evaporated apples, at 5 cents per pound, to be packed in 50-pound boxes, net weight; * * * same to be delivered on or before November 15, 1898, f. o. b. cars at Saranac; terms, sight draft, with bill of lading attached. And said L. S. Town agrees to buy aforementioned stock on terms and conditions as specified. And it is agreed that said Jepson — 677 — Bros, may furnish 5 tons more on same terms, if they make them. Weight guaranteed.” Defendants delivered on said contract only 100 fifty-pound boxes, or one-third of the amount contracted for, and, the market price of apples having advanced, this suit was brought to recover damages for the failure to deliver the remaining two-thirds. Defendants offered testimony tending to prove that, both before and after the execution of the contract, it was agreed that the draft referred to in said contract should be drawn on the plaintiff at Manchester, Mich., and that it would be honored at that place; that, after the execution of the contract, it was also orally agreed that defendants would ship 100 boxes at a time. October 5, 1898, defendants delivered 100 boxes, containing 5,000 pounds, and received their pay in the method agreed upon. October 22, 1898, defendants delivered to the railroad the second installment, consisting of 100 fifty-pound boxes, and drew upon plaintiff, with the bill of lading attached, at Manchester, Mich. This draft was returned without acceptance, with no information as to plaintiff’s whereabouts, though very soon thereafter •defendants learned from another customer of plaintiff’s that he had gone to his home in the East. Regarding this as an abandonment of the contract, defendants sold their apples to a third person. They did not hear from plaintiff until they received a letter written by him and mailed at his home in New York November 9, 1898, directing them to ship the balance, and to draw on him for the amount through a bank at Clyde, N. Y. This defendants declined to do, on the ground that plaintiff’s failure to honor the draft for the second shipment ended their obligations under the contract. The court instructed the jury that, if the failure of the plaintiff to pay the draft indicated an intention to abandon the contract, their verdict should be for the defendants. They found for the defendants. Plaintiff insists that, in instructing the jury as above indicated, the trial court .erred. He insists that under the decision of West v. — 678 — Bechtel, 125 Mich. 144 (84 N. W. 69, 51 L. R. A. 791), plaintiff’s failure to pay for this installment of the fruit did not warrant defendants’ rescinding the contract. We do not think that decision applicable to the facts of this case. There it was held that “the mere refusal to pay for a portion of the property delivered until more was received would not alone constitute such a breach of the contract as would warrant the other party, the defendant, in repudiating the entire contract.” That case, however, approves the language of Chief Justice Coleridge in Freeth v. Burr, L. R. 9 C. P. 208: “ The true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract. Nonpayment on the one hand, or nondelivery on the other, may amount to such an act, or may be evidence for a jury of an intention wholly to abandon the contract, and set the other party free.” We think a refusal to pay for a third of the property described in this contract, which payment was to be made as a condition of the transfer of that property, unaccompanied by any explanation whatever, would, without doubt, afford evidence of an intention to no longer perform the contract. See, also, Withers v. Reynolds, 2 Barn. & Adol. 882, cited in the opinion in West v. Bechtel. Plaintiff insists, however, that the evidence in this case conclusively proves that there was not such a refusal. October 20, 1898, he returned to his home in Rose, N. Y., leaving funds in the bank at Manchester. He instructed the banker at Manchester, if drafts were drawn on him, to return them to the makers, and have them forward them on to the Briggs National Bank at Clyde, N. Y. Defendants drew their draft of October 22d through a banker at Saranac on the plaintiff at the bank in Manchester where plaintiff’s funds were deposited. According to defendants’ testimony, the draft and attached bill of lading were returned to the Saranac banker, with a letter from the Manchester banker, saying, “No funds,” to — 679 — gether with the information that possibly, if a draft was sent to Clyde, N. Y., it would be paid. While the defendants testify that their banker did not communicate to them the information received by him, we think the case should be disposed of upon the assumption that they are chargeable with that information. Assuming defendants so chargeable, we do not think this information imposed on them an obligation to hold their fruit, and send their draft to Clyde, N. Y., upon the chance that plaintiff might there pay it. The draft not having been honored as agreed, defendants were not bound to follow plaintiff to another State upon the possibility that he would there perform a contract which he had already broken. Nor can we agree with plaintiff that because defendants sent their draft to the bank at Manchester, where plaintiff did his business, that banker became their agent in such a way as to make them chargeable for his neglect. It is a fair inference from the record that the draft was sent to that bank because it was known that, that was where plaintiff kept his funds in Manchester. If defendants dealt with the Manchester banker as the agent of plaintiff, —and in a sense he was the plaintiff’s agent, — they did not make him their agent. There was an obligation on the part of the plaintiff, under the agreement he had made with the defendants, either to accept the drafts at Manchester, or communicate to them any change he made in his arrangements for their payment. The person, therefore, whom he selected to transmit that communication, was his agent, and he was chargeable for his neglect. Plaintiff also insists that the Saranac banker had transmitted a draft for another customer of his to Clyde, N. Y., — a draft drawn on plaintiff at that place, — and that defendants, having used this same banker, were charged with this information. It is a sufficient answer to this argument to say that the testimony does not make it conclusively appear that the Saranac banker obtained this information before he ceased to act ^ for defendants. According to his testimony, he might have returned defendants’ draft before that information was obtained. — 680 — In our judgment, defendants are justified by this testimony in claiming that there was a refusal to pay for these 100 fifty-pound boxes of fruit without any explanation whatever; and, as heretofore indicated, this, in our judgment, warranted the jury in finding that plaintiff had evinced an intention to no longer perform the contract. ■ It is argued by plaintiff that the notice attached to defendants’ plea of the general issue was not sufficient to justify their making the defense relied upon. Under the law as stated in this opinion, and the case of Briesenmeister v. Knights of Pythias, 81 Mich. 525 (45 N. W. 977), we are bound to hold the notice sufficient. Plaintiff contends that the court erred in permitting defendants to prove that, after the contract was entered into, it was agreed that shipments of 100 fifty-pound boxes might be made by them. This testimony was clearly admissible. See Summers v. Wagner, 87 Mich. 272 (49 N. W. 570); Freese v. Arnold, 99 Mich. 13 (57 N. W. 1038). Neither can we agree with plaintiff that parol testimony showing the agreement that the draft should be paid at Manchester was incompetent. This evidence did not tend to vary the contract. The contract contained these, and only these, terms: “Sight draft, with bill of lading attached.” It was not only competent, but proper, for the parties to determine by an oral agreement upon whom these drafts should be drawn, and where they should be presented. Liggett Spring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445 (64 N. W. 466); National Cash Register Co. v. Blumenthal, 85 Mich. 464 (48 N. W. 622). Nor is the point well taken that, because the acceptor of a sight draft has three days of grace, defendants were obliged to wait three days before treating plaintiff’s failure to accept as an abandonment of the contract. While one who accepts a sight draft has three days in which to pay it, one to whom a draft is presented for acceptance has not three days in which to accept it. See Case v. — 681 — Burt, 15 Mich. 82. After plaintiff had returned from Manchester to his home in New York with the intention of remaining, defendants were not bound to keep the draft at the Manchester bank three days upon the chance that he might return there and accept it. Defendants were not, as contended by plaintiff, under an obligation to give notice of their election to rescind the contract. They had a right, under the facts as claimed by them, to treat the contract as rescinded by the plaintiff. We have carefully examined the other assignments of error relied upon. In our judgment, they are not well taken, and do not warrant discussion. The judgment will be affirmed, with costs. The other Justices concurred.