Stave & Timber Corp. in Norfolk v. A. H. Andrews Co.

HOUGH, Circuit Judge (after stating the facts as above). We assume with the parties in this case that Andrews Co.’s express warranty of -the kilns survived, and was intended to survive, acceptance, and that under ordinary circumstances defendant’s procedure in counterclaiming for breach of warranty in a suit for the contract price would not be open to objection. This is the ordinary course of law. The question here is whether the agreement of the parties amounts to a binding contract to pursue another and special procedure, which they are presumed to have preferred and chosen. [ 1 ] As the point has not been argued, we assume that denials upon information and belief of the material allegations of the complaint, and even in respect of matters plainly and certainly within the knowledge of the pleader, are good. Bennett v. Leeds Mfg. Co., 110 N. Y. 150, 17 N. E. 669; Dahlstrom v. Gemunder, 198 N. Y. 449, 92 N. E. 106, 19 Ann. Cas. 771; Kirschbaum v. Eschmann, 205 N. Y. 127, 98 N. E. 328. Upon this assumption it is plain from the pleadings and by the conjoint oath of both parties that the kilns were defective, and did not comply with warranty; that Andrews Co. did not succeed in making them comply, or did not attempt so to do, and did request Stave Co. to return them without expense and receive repayment of so much of the purchase price as had not already been paid. e[2] The contract did not in terms oblige Andrews Co. to remedy defects. It was always possible for the vendors to recognize their own failure without sending good money after bad, in an endeavor (perhaps) to do the impossible. This is plain from the language of the agreement, which provides that, “after such opportunity is afforded” Andrews Co. for “correction of any existing errors or defects,” the purchaser could do one of two things; i. e., pay for the kilns, or ship them back without cost, procure return of the price paid, and thus satisfy the contract of sale. It is not provided that the purchaser should have this option only if Andrews Co. attempted to remedy defects; the option arose after an opportunity had been given to remedy defects, and on Stave Co.’s own pleading such an opportunity was afforded and either neglected or resulted in failure. [233] Argument for plaintiff in error consists in asserting that what we have called the option given the purchaser is stated in words which “are in fact meaningless.” This is very far from being true. Warranties of performance (especially) are difficult of fulfillment, depending oftentimes quite as much upon skill in operation by purchaser as in excellence of materials furnished by vendor. Efforts hase not been infrequent to avoid by contract exactly such a situation as is here pre - seulcd, viz. the purchaser of a warranted article pays some amount in advance, declares or finds his purchase to be defective, keeps and uses it with at least partial satisfaction, and leaves the vendor to sue for the cost of the thing sold, against a counterclaim put forward by the man who is using that which he has not paid for. On which side of a contest such as this justice lies is hard to discover upon the fullest evidence, and it is anything but meaningless or idle or unreasonable to avoid such a situation before it can arise. [8] It is not doubted that, where the language of the parties’ contract is clear, that it must be enforced unless illegal; and in this case we find no difficulty in holding, as we do, that it was the intent of the parties to this suit that if the kilns were not up to standard, and Andrews Co. either did not or could not or would not make them conform to the warranty, the purchaser covenanted to tender the kilns back as a condition precedent to any suit for breach of warranty. By the pleadings it is admitted, not only that no such tender was made, but such action was requested by Andrews Co. and refused by Stave Co. We are not concerned with (and given no opinion regarding) the validity or infirmity of the counterclaim, and no judgment on the merits, has been given thereupon. It asserts an independent cause of action, but under the circumstances here revealed by sworn pleadings, payment of the purchase price is a condition precedent to bringing such a suit. The construction of contract above given closely resembles that in Birch v. Kavanaugh, etc., Co., 34 App. Div. 614, 54 N. Y. Supp. 449, affirmed 165 N. Y. 617, 59 N. E. 1119; nor does White, etc., Co. v. Miller, etc., Co., 131 App. Div. 559, 115 N. Y. Supp. 625, contain anything inconsistent herewith, as it was there , specifically found that there had been a modification of the written agreement under consideration, which modification quite changed its original effect. See, also, J. A. Fay, etc., Co. v. Dudley, 129 Ga. 314, 58 S. E. 826; J. I. C. Threshing Co. v. Puls, 158 Ill. App. 1; Pennsylvania, etc., Co. v. Hygeian Cold Storage, 185 Mass. 366, 70 N. E. 427. The crucial question always is: What did the parties mean — or can a plain meaning be extracted from the words they used? We think both these inquiries can be satisfactorily answered in this case ; the parties meant and said that if the kilns were not up to contract they should be returned and the price refunded. As the defendant below admittedly refused to pay the price or return the kilns, the judgment is affirmed, with costs.