Jaslow v. Waterbury Co.

MAYER, Circuit Judge. 1. Plaintiff is dissatisfied with the amount of the verdict below and assigns as error the refusal of the District Court to grant a new trial on the grounds set forth in the then section 999 of the New York Code. Such refusal is not reviewable here. Great Atlantic & Pacific Tea Co. v. Carey, 220 Fed. 454, 136 C. C. A. 282. 2Defendant, though pressing its assignment of error for failure by the trial judge to dismiss the complaint or to direct a verdict for defendant, states that it “does not ask for and does not desire a new trial.” [367] Except, however, in some such situation as occurred in United States v. Benedict (C. C. A.) 280 Fed. 76, affirmed 261 U. S. 294, 43 Sup. Ct. 357, 67 L. Ed. 662, a teversal here necessarily carries with it the right to a new trial, and this court has no power to dismiss the complaint. Slocum v. New York Life Insurance Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914 D, 1029. We restate the foregoing far from novel propositions because we have noted of late in reviews on writs of error a lack of information as to the difference between the practice in the New York courts and the United States courts. 2. No specific date for performance was fixed in the agreement between the parties. Hence each party was required to perform his or its obligation within a reasonable time. It is plain that an essential feature of the agreement was that goods were not to be delivered until the necessary shipping permit was obtained. Obviously, this was a matter of vital importance at this time when submarine warfare had long been known. (In re The Lusitania [D. C.] 251 Fed. 715), and when goods without permit were subject to the risk of capture and condemnation. The letter of March 24, 1916, was a clear indication that the parties were contemplating reasonably prompt deliveries. The record also discloses that the amount of rope, contracted for was. large, that it was a special brand, and that prices were fluctuating — a fact not unfamiliar at that time as illustrated in many reported cases, the outgrowth of contracts made during the war. The duty, therefore, of plaintiff’s various assignors was to obtain or cause to be obtained the necessary shipping permits. Defendant concededly acted in good faith in endeavoring on behalf of plaintiff’s assignors so to do. After the 15 tons had been delivered, the Gotthardt Corporation on November 14, 1916, instructed defendant to “ship remainder first opportunity provided shipping permit obtained. * * * ” This was another way of saying that defendant must not deliver until and unless such shipping permit was obtained. Obviously, it would have been futile for defendant to deliver free alongside ship, if there was no permit to ship. On February 1, 1917, the date of the letter of cancellation or rescission, 2% months had elapsed since the letter of instructions from the Gotthardt Corporation and, so far as this record discloses, not only had no shipping permit been obtained, but there seemed to be no prospect of obtaining one. Defendant was not under any duty to deliver until there was a proper shipping permit. It was not required to wait indefinitely but only for a reasonable time. At the date of the trial (December, 1921), Taylor v. Goelet, 208 N. Y. 253, 101 N. E. 867, Ann. Cas. 1914B, 284, was the New York authority for the proposition summarized in the headnote: “.Where an executory contract fixes the time within which it is to be performed and performance within that time is waived by the parties to the agreement, neither party can thereafter rescind the contract on account of [368] such delay without notice to the other requiring performance within a reasonable time to be specified in the notice or the contract will be abrogated.” Probably in view of this and other cases, the court charged that it was the duty of defendant to fix a time for performance by plaintiff of its duty and that defendant had no right to repudiate the contract on February 1, 1917. Since the Taylor Case supra, however, the New York Court of Appeals has decided Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320, 137 N. E. 603, and Trainor Co. v. Amsinck & Co., Inc., 236 N. Y. 392, 140 N. E. 931. The Taylor Case was decided by a divided court, two judges dissenting and one not sitting. .In the Trainor Case, supra, the court frankly stated: “But we did go further in Taylor v. Goelet than the particular case required. Speaking generally of 'all executory contracts we said there could be no rescission for delay unless time was the essence of the contract. If the agreement explicitly or impliedly was for performance within a reasonable time it never is of the essence. It can only be made so by subsequent notice. In any event the statement is too broad. It does not apply to cases requiring the delivery of articles of speculative and fluctuating value. We have held it does not .apply to contracts relating to cable transfers of exchange. Nor does it apply to ordinary contracts of sale where there is no waiver — nothing to induce a party to proceed in the belief that he is not to be held strictly to the time stated.” The court continued: “Where by a contract to sell the seller is bound to deliver the goods to the buyer but no time for delivery is fixed, the seller must tender, them within a reasonable time. Personal Property Law (Consol. Laws, c. 41) § 124. Under this statute the contract such as the one in the case before us does provide for delivery at a future time just as effectually as if that future time was fixed by date. The duty of the seller is absolute. He has not been deceived by any action of the buyer or led to believe that strict compliance with the contract is not to be insisted upon. The. provision as to the delivery within a reasonable time is a condition. It may be waived, and if waived it may not again be imposed without notice. If not waived, however, the buyer may refuse to proceed with the contract. Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61; Eppens, Smith & Wiemann Co. v. Littlejohn, 104 N. Y. 187. It was therefore, in the case at bar a question of fact whether the goods were delivered within a reasonable time. If the jury found they were not the buyer had a right to rescind the contract.” Defendant excepted to that part of the charge which stated that it had no right to rescind the contract on February 1, 1917. This exception was well taken. Whether a reasonable time had elapsed by February 1, 1917, so as to entitle defendant to rescind, was, under the circumstances of this case, a question of fact for the jury. In view, however, of subsequent events, we regard the February 1, 1917, feature of the case as only incidental to the final situation. When Spieler obtained the assignment of the contract to himself, he knew defendant’s position as set forth in the February 1, 1917, letter. His demand, through Haviland, was a mere gesture because the contract was not to deliver so much rope “here in New. York City,” but was’ to deliver F. A. S. if and when a shipping permit was obtained. [369] When, therefore, defendant refused to comply with Haviland’s demand, its refusal was properly placed on the ground that there was no “change in the situation” from that portrayed in the letter of February 1, 1917, as to “the long delays already suffered.” Defendant, under the principle of the Trainor Co. Case, supra, was not required to fix a date for performance by plaintiff. The question then was whether the delay of plaintiff’s assignors was reasonable or unreasonable. On June 29, 1917, the unreasonableness of the delay of plaintiff’s assignors no longer presented a question of fact.- A delay from November 14th until June 29th in respect of a commodity subject to fluctuating prices during the World War and after this country had declared war and the inability, proven in this case, to obtain the necessary shipping permit and the complete absence of even a possibility of obtaining such permit compel the conclusion, as matter of law, that such delay was unreasonable. Earnshaw v. United States, 146 U. S. 60, 13 Sup. Ct. 14, 36 L. Ed. 887; In re B. & R. Glove Corporation (C. C. A.) 279 Fed. 372; Agnello v. United States, 290 Fed. 671; and Edwards Manufacturing Co. v. Bradford Co., 294 Fed. 176, decided by the Circuit Court of Appeals for the Second Circuit on November 19, 1923. ' It follows that, in any event, on June 29, 1917, the rescission was fully justified and the court should have granted defendant’s motion for the direction of a verdict in its favor. This conclusion renders detailed discussion of plaintiff’s assignments of error unnecessary. Should there be another trial, some of the questions presented by plaintiff’s assignments of error will, no doubt, disappear. It is sufficient to observe that the court was correct in the rulings attacked by the first and eighth assignments. Judgment reversed. ,