James Curran Manufacturing Co. v. Aultman & Taylor Machinery Co.

62 A.D. 201, 70 N.Y.S. 1074

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinions

Ingraham, J.:

The action was brought to recover the damages sustained by the plaintiff in consequence of the failure of the defendant to deliver three horizontal water tube boilers. It appeared that on May 1, 1899, the defendant made a written proposal to furnish these boilers. This was stated to be “specifications for contract.” It provides that, “ for and in consideration of the hereinafter-named amount» we propose to furnish.to Jas. Curran M’f’g Co: * * * 375 H. P. ‘ Cahall ’ ■ Horizontal Sectional Water Tube Boilers * * * for the sum of -as per letter. One-half payable on presentation of sight draft, with shipping receipt. Balance in 60 days from shipment,” and signed by the defendant per Thayer & Company, Inc. Annexed to this proposal was a blank to be filled up and signed if the proposal was accepted, and accompanying this proposal was a letter from the defendant fixing the price at $5,690. Subsequently, on May twenty-ninth, the defendant submitted to the plaintiff another letter, making the net price $5,500. Upon the same day the plaintiff filled up the blank attached to the proposal, adding the words in the blank left for date of delivery, “ and completed in 60 days.” The acceptance of this order was to be subject “ to our .acceptance of May 29/99,” and was signed by the plaintiff. Accompanying this acceptance was a letter dated the same day, addressed to the defendant, as follows: “ Your proposal for three boilers, One hundred and Seventy-five Horse Power each, to be delivered and set, as per drawings and specifications, and subject to Architect’s approval, * * * is hereby accepted on the following conditions: One-third when all the material for the boilers are delivered, and one-third when the boilers are set up and the mason work for same is put in complete, and the balance thirty days after the boilers are complete and tested according to the Architect’s specification.

“ These boilers to be delivered, erected and enclosed in mason work in 60 days from date of order or acceptance.” (Signed by the plaintiff.)

The plaintiff’s president testified that the letter of the defendant dated May twenty-ninth was received by him by ■ mail; that Mr. Thayer, the defendant’s agent, subsequently, and on the same day, called on the president of the plaintiff; that there was some discussion about the terms mentioned in the letter; that in their discussion it w.as agreed that the boilers were tó be delivered and erected sixty days from the date of the acceptance, and that while Mr. Thayer was in the plaintiff’s office he read the letter of May twenty-ninth, accepting the proposal upon the conditions named; that the terms of payment were discussed between the plaintiff’s president and Mr. Thayer and agreed to; that in that conversation it was stated that the building was to be completed before the first of October, and that the plaintiff could not get the building done unless the boilers were placed and erected within sixty days from the twenty-ninth of May. Mr. Thayer was called as a witness and testified that he received the acceptance of the proposition and the letter accompanying it on the twenty-ninth of May; that when he read the letter of acceptance he took some exceptions to the terms of payment, as they were most extraordinary terms, “ and terms that we very rarely allow, and I said that there would be some difficulty in regard to that; that I should have to take it up with the Aultman & Taylor Machinery Co., my principal, before definitely accepting that part of the acceptance; ” that in regard to the delivery of the boilers sixty days from date he said that there might be some delay over that, as that was an extraordinarily quick delivery, and the defendant had no definite information in regard to the space that the boilers were to get in; that the witness said that there might be some question in regard to the delivery specified by Mr. Curran, the plaintiff’s president, because “ our shops were very crowded and I wanted to get an extension of time, and he said that any extension of time that I needed I should get from Mr. Reilly, and I thereupon called on Mr. Reilly’s manager, Mr. Conroy; ” that he subsequently saw Mr. Conroy on.the twenty-third of June and told him it was all off and we could not deliver the boilers. The plaintiff’s testimony was corroborated by a witness who was present at the time of the interview. He swore that hot a word was said by Mr. Thayer that there might be some delay in the delivery or that they would have to get an extension of time to deliver; that nothing was said by Mr. Thayer that he might have to refer the terms of payment to the defendant; that both the terms of delivery and the terms of payment contained in the plaintiff’s letter of May twenty-ninth were at that time agreed to; that these terms of payment were first proposed by Mr. Thayer, and Mr. Curran agreed to it, and that that was all the conversation there was about the terms of payment. There was also introduced in evidence a letter from the plaintiff to the defendant, dated June 30, 189.9, in which the plaintiff stated to the defendant: “We received your final proposition dated May 29th, ’99, to furnish and erect three Water Tube ‘ Oahall ’ Boilers. * * * These boilers were to be delivered and erected ready for steam sixty days from date of order..

“We accepted your proposal of May 29th, ’99, and you accepted our order of same date, and on or about June 23rd you called on the writer and made the statement that you could not or would not deliver the boilers as per your proposal unless we extended the time for delivery and erection Thirty days, which extension we could not allow, as the building had to be finished and occupied by Sept. 1st,

“ All this places my Company in a very bad position' before my customers, and we want your Company to state your end of the maD ter in writing at the. earliest possible time, so that I can place it before Mr. Butler and the Architect.”

In reply to that letter, on the 6th of July, 1899, the defendant’s agent Wrote a letter to the plaintiff as follows : “ Your favor of the 30th ulto. duly at hand and noted. In regard to the order which you gave us for boilers to go into the building at 70th Street and Boulevard, would state that, upon receiving this order from you we waited a few days to secure the information in regard to the conditions where these boilers were to be installed, and immediately on receipt of same sent all the papers pertaining to this order to our principals, the Aultman & Taylor Machinery .Company. A few days thereafter we received word from them, t'o the effect that, owing to this order calling for a special boiler, and having special requirements for material to- make up these boilers, it would be impossible to complete them within the period- specified by you. * * *

“Immediately upon receipt of this communication from them we notified you of the fact of our not being able to complete this work within the time specified, and asked if it were possible to secure an extension, when you told us you could not give us any such extension, and referred us to the general contractor on this job, Mr. T. J. Reilly. Upon communicating with him we learned that the boilers had to be in operation by September 1st, at the very latest. We then communicated with our shops to that effect, and they replied that it was beyond their power to complete the work within that time. * * * Upon receipt of information from the Aultman <& Taylor Company that they could not meet this completion of the contract by September 1st, we notified T. J. Reilly and had considered your order canceled.,

“We beg to state that we are extremely sorry that we are unable to build these boilers for you, and assure you that, had we been able to meet the delivery in any possible way we would have been glad to do so; our inability being entirely due to the overcrowded condition of the iron and steel market and the inability to secure material quickly.”

At the end of all the testimony the defendant moved to dismiss the complaint. That motion was denied, the court stating: “ The specifications were modified by the written letters on both sides, which finally crystalized the contract as to the terms of payment. I cannot let you go to the jury on that issue at all. The letters themselves show that you could not deliver the goods on time, and the only question is whether the time of delivery was of the essence of the contract.” To that the defendant excepted, and then asked to go to the jury., to which the court replied, “ Certainly.” From the record it further appears that after counsel for the defendant summed up the court made this statement-: “ Counsel is not allowed to sum up on the point as to whether there was a contract dr not. I shall charge the jury that there was a contract. That is a false issue,” to which counsel for the defendant excepted. Counsel for the plaintiff then summed up, and in the course of the charge to the jury the court stated that two parties may contract and- make the time the essence of the contract. “ If that is understood1 by both parties; if that is the essence of the contract, that is, that a party must have a thing within a certain time, and that contract is clearly within the minds of both parties, if it is not done within that time, it is a breach of the contract, * * *. The only dispute in the case and which.I leave you is, whether or no.t they did- agree to do that within sixty days, and whether it was brought home to Hr. Thayer, who was the selling agent of the defendant company, that the essential part of the contract was the delivery within' sixty days. * * * The only thing left, as the court sees it, is whether or not their minds did meet on the question of the sixty days. There is no dispute that other boilers were bought and that the price was $6,300, which was $800 more than the contract price, and if you resolve, the one question of facts which I leave to you in favor of the plaintiff, the burden being upon the plaintiff to prove his case by a fair preponderance of evidence, you will find a verdict in his favor for $800. If, on the contrary, you find that the minds of these contracting parties did not meet on the sixty days’ limit, that time was not the essence of the contract, and, therefore, there was no agreement upon that subject, you will find a verdict for the defendant.” Counsel for the defendant then excepted to the charge of the court that a contract was made and the minds of the parties met with regard to the agreement of payment and with regard to the time of delivery. To that the court said: “ I did not charge that their minds met as to the time of delivery. That is the question I leave to the jury.” Counsel for the defendant: “ With regard to the -fact that the Aultman & Taylor Co, agreed to deliver.” The court: “ I will give you an exception. I leave the question to the jury whether their minds did meet upon the question of delivery within sixty days, and that was the essence of the contract. That is the question I am leaving to the jury.” Counsel for -the defendant: “ I will withdraw my exception with regard to the question as to the delivery.” There was no request to submit any other question to the jury, and the jury found a verdict for the plaintiff.

There was undoubtedly a modification by the plaintiff of the original proposition made by the defendant as to the time of payment and a limit of the time within which the boilers were to be delivered. By the original proposition made by the defendant there was no time fixed within which the boilers were to be delivered, and the terms of payment were one-half payable on presentation of sight draft with shipping receipt and the balance in sixty days from shipment. The plaintiff accepted the proposal upon condition that the payments should be one-third when all the materials for the boilers were delivered, and one-third when the boilers were set up and the mason work for the same put in complete, and the balance thirty days after the boilers were complete and tested according to the architect’s specifications ; and there was also a modification as to the time of the delivery which, instead of being unlimited, was limited to sixty days from the date of the contract. According to the plaintiff’s testimony, these conditions were unconditionally accepted by the agent of the defendant, and, if that was true, there was .then a completed contract. The testimony of the agent of the defendant, however, denied this acceptance of the conditions imposed by the plaintiff, both as to the time of payment and the time for the completion of the boilers. When, however, the defendant had refused to carry out its agreement and was asked to explain its position, the defendant’s agent, by the letter of July sixth, distinctly placed' the refusal to deliver the boilers upon its inability to deliver them within the time specified. No question was then made as to the time of payment, the order was treated as an existing order accepted by the defendant, but as having been subsequently canceled because of the inability of the defendant to deliver the boilers in time. That letter is entirely inconsistent with the claim of the defendant that no contract was ever made, or that any question had been raised as to the time of payment. The agent for the defendant there stated: “Had we been able to meet the delivery in any possible way we would have been glad to do so ; our inability being entirely due to the overcrowded condition of the iron and steel market and the inability to secure material quickly.” In the face of this testimony and the statement of the defendant’s agent that the only objection that the defendant made to completing the order was that the time, within which the boilers had to be delivered was too short and that he had endeavored to procure from the contractor an extension of time to deliver the boilers, and that it was upon a failure to obtain such an extension that they refused to comply with the contract, it would seem that a finding of the jury that any objection was taken to the terms of payment contained in plaintiff’s letter of May twenty-ninth,, would have been clearly against the weight of evidence. The correspondence and the testimony show conclusively that the only question that was considered open by the defendant, assuming that the testimony of the defendant was true, was the time within which the boilers were to be delivered. When the court came to submit, the quéstion to the jury, it submitted the question whether the minds of the parties met as to the time of delivery so that a contract was actually completed. There was no request by counsel for the defendant to submit any other question to the jury, and the case presents no exception which would justify a reversal because the question as to whether or not the minds of the parties met as to the time of payment was not submitted to the jury. The defendant moved to dismiss the complaint, which motion was denied. It then asked to go to the jury, which request the court granted without restriction at that time, and then the court charged the jury that they must find that the minds of the parties met as to the terms of delivery before they could find a verdict for the plaintiff. The defendant made no request to submit to the jury the proposition that if there had not been an agreement as to the time of payment, there was no valid contract. The court had not charged the jury upon that subject, and if the defendant’s counsel had desired to have that question submitted to the jury, it was his duty to- request such a submission. The jury did affirmatively find that there was an agreement as to the time of delivery, and that the conditions imposed by the plaintiff in its- acceptance of the defendant’s proposal were accepted by the defendant: The mere statement of the court ■ in denying a motion for a direction of a verdict for the defendant, or for a nonsuit, as to the ruling that he should make in his charge is not reversible error, when the charge as finally presen ted to the jury leaves to their determination the real question in the case, and when no request to charge is made to present any other question to the jury.

Upon the whole case, I think the substantial question was fairly submitted to the jury by a charge which was unexceptionable, and that the finding of the jury that there was a valid contract between the parties was sustained by the evidence. I think the judgment should be affirmed, with costs.

Patterson and McLaughlin, JJ., concurred; Hatch and Laughlin, JJ., dissented.