Elting Woolen Co. v. Martin

The written contract upon which this action is brought was plainly one for the purchase by the defendant of 230,000 yards of flannel of a specified kind and quality, to be manufactured by the plaintiff (Passaic Manufacturing Co. v. Hoffman, 3 Daly, 495), and was not of such a mixed character, that if they failed thereafter to manufacture the goods called for by the contract, they might go into the market and procure others of a similar kind and quality to supply the deficiency. It suggested no such mere sale and purchase, but related to goods which plaintiff thus agreed to deliver the defendant out of the future products of their mill, to wit, “ from the date of the contract at the rate of not less than 40,000 yards per month,” until the entire quantity contracted for should be completed ; and it provided that the entire product of *419the mill from the 24th of March (the contract was dated the 9th) was to be delivered under the contract, until the entire quantity was completed ; and if the mill or manufactory was destroyed by tire or otherwise, before the completion of the contract, the contract, as to the balance of the goods not delivered, was to be void. It also provided that if the plaintiff failed to deliver the goods “ up to contract,” defendant had the right to purchase them on their account.

Plaintiff’s mill had a capacity of easily producing from 40,000 to 50,000 yards of flannel weekly, but instead of immediately proceeding to manufacture any flannel of the character called for by the contract, they retained the poor warps in their looms until the first of April. They made and tendered but 24,985£ yards during the first month (ending April 24th, 1865), but these sjus-rejected by the defendant as inferior to the requirements of the contract. Without regard to the merits of the controversy with reference to the quality of the goods then tendered, the omission of the plaintiff to produce or offer the balance of 15,000 yards required to be delivered prior to the 24th of April, is attempted to be excused by an alleged substituted agreement on the 10th of April, when, as claimed in complaint made by defendant as to the character of the goods tendered, the plaintiff’s agent stated to him that they were prepared to furnish any deficiency in that month’s delivery, as they had ascertained the goods could be obtained, but would give him the privilege of supplying himself, and he could save money by it, as the market price was less by ten cents per yard than he liad agreed to pay; and that defendant said he would furnish the deficiency himself. On the 21st of April plaintiff tendered eleven other bales (containing 6,336 yards) which were also rejected without examination. Under these circumstances, the defendant, at the end of the first month (April 24th), refused to receive any more of the goods, and repudiated further performance of the contract, and, in my opinion, he was justified in so doing. The plaintiff plainly failed to comply with its prescribed terms, in neglecting to manufacture these particular goods for defendant, and deliver him such manufactured goods during the first month to the *420extent of 40,000 yards. It rested in the option of the defendant, in case of their failure to comply with their contract, to go into the market and purchase such goods on their account, and by tendering him the election to do so, as they alleged was done on the 10th of April, they neither offered nor conceded to him any privilege which he did not already possess under the very terms of the agreement, so that even if he assented to their proposal, nothing was thereby yielded or conceded on their part which constituted a consideration for any modification of the contract. The right to go into the market and buy such goods on account of plaintiff, in case of breach of the contract by non-delivery of the article contracted for, was fully secured to him by the precise terms of the contract, and to do so, and buy on his own private account, was a right he possessed unabridged by any provision of the agreement in question.

Under these views, I am of the opinion the defendant was fully justified by the plaintiff’s default in refusing any further obligation to the contract, and that the complaint was properly dismissed.

Judgment should be affirmed.

Larremore, J., concurred.

Judgment affirmed.