Moers v. Dietz

Appellate Terms of the Supreme Court of New York

Moers v. Dietz

52 Misc. 173, 101 N.Y.S. 590

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1906

StatusPublished

This text of 52 Misc. 173 (Moers v. Dietz) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moers v. Dietz, 52 Misc. 173, 101 N.Y.S. 590 (N.Y. Ct. App. 1906).

Pincite

Opinion

Davis, J.

The action was brought to recover damages for breach of the contract for the sale of certain metal. The contract is contained in a memorandum signed by the defendant. It specifies in detail the metal purchased, the number of pounds and the price of each metal. Some of the metal was delivered on October 10, 1904, and some on October 14, 1904. A large part of it was never delivered, the defendant having refused to make further deliveries, alleging as a ground of his refusal the failure of the plaintiffs to pay cash for the metal already received by them. At the time of defendant’s refusal, he had been paid in full for the metal already delivered. These payments had been made Do.vember 10, 1904, and Dovember 14, 1904. Defendant claims that the plaintiffs, by their failure to pay cash on delivery, committed a breach of the contract which relieved him from further performance after October 14, 1904. We think this contract must be deemed to be an entire contract which required the defendant to make or to tender full delivery, a reasonable time after the making of the contract, before he had a right to demand any payment. Therefore, there was no breach of. the contract by the plaintiffs in failing to pay cash when the first delivery was made. At any rate, the breach, if any, was waived by the defendant, when he made the second delivery before the first had been paid for. The plaintiffs demanded the delivery of the remainder of the metal purchased and offered to pay spot cash for it, but the defendant refused to comply with this demand. We [175]*175think the evidence clearly shows a breach of the contract by the defendant for which the plaintiffs have a right to recover. Upon defendant’s refusal to deliver plaintiffs went into the market and purchased the metal at a higher price. The difference between the contract price and the price paid in the open market was $238.87. They should have had judgment for this amount.

Gildersleeve and Fitzgerald, JJ., concur.

Judgment reversed with costs to appellant to abide event and new trial granted.

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Davis, J.

The action was brought to recover damages for breach of the contract for the sale of certain metal. The contract is contained in a memorandum signed by the defendant. It specifies in detail the metal purchased, the number of pounds and the price of each metal. Some of the metal was delivered on October 10, 1904, and some on October 14, 1904. A large part of it was never delivered, the defendant having refused to make further deliveries, alleging as a ground of his refusal the failure of the plaintiffs to pay cash for the metal already received by them. At the time of defendant’s refusal, he had been paid in full for the metal already delivered. These payments had been made Do.vember 10, 1904, and Dovember 14, 1904. Defendant claims that the plaintiffs, by their failure to pay cash on delivery, committed a breach of the contract which relieved him from further performance after October 14, 1904. We think this contract must be deemed to be an entire contract which required the defendant to make or to tender full delivery, a reasonable time after the making of the contract, before he had a right to demand any payment. Therefore, there was no breach of. the contract by the plaintiffs in failing to pay cash when the first delivery was made. At any rate, the breach, if any, was waived by the defendant, when he made the second delivery before the first had been paid for. The plaintiffs demanded the delivery of the remainder of the metal purchased and offered to pay spot cash for it, but the defendant refused to comply with this demand. We [175]*175think the evidence clearly shows a breach of the contract by the defendant for which the plaintiffs have a right to recover. Upon defendant’s refusal to deliver plaintiffs went into the market and purchased the metal at a higher price. The difference between the contract price and the price paid in the open market was $238.87. They should have had judgment for this amount.

Gildersleeve and Fitzgerald, JJ., concur.

Judgment reversed with costs to appellant to abide event and new trial granted.

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Bluebook (online)

52 Misc. 173, 101 N.Y.S. 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moers-v-dietz-nyappterm-1906.