Munroe v. Trenton Oil Cloth & Linoleum Co.

206 F. 456, 124 C.C.A. 362, 1913 U.S. App. LEXIS 1570

Opinion

NOYES, Circuit Judge

(after stating the facts as, above). ,[1] The first contract between the parties called for the delivery of 150 tons monthly. The second contract, as interpreted by them, called for the delivery of 83 tons monthly. Thus for the period before the contentious arose deliveries of 233 tons per month were required by the contracts as originally made. The defendant claims, however, that the contracts were modified by the parties so as to require the delivery of 325 tons monthly. This contention is based upon three letters which passed between the parties. But in our opinion these letters should be interpreted as requests for accommodation on the one side and an expression of willingness to comply therewith so far as possible on the other. In view of the situation we think that they fell short of constituting a permanent modification or amendment of the contracts which bound the plaintiffs’ assignors to make, and gave the defendant the right to require, increased deliveries.

[2] The contracts, then, standing without modification the defendant was, in our opinion, guilty of the first actionable breach by failing to pay for the shipment clue September 2, 1909. it is true that short deliveries had been made before that time but they had been accepted without objection and payment had been made for all amounts falling due. Besides the defendant shortly before this time had itself requested the plaintiffs’ assignors to curtail a shipment. The defendant thus waived any right to complain of the short deliveries, and its position taken after September 2d would undoubtedly have justified the plaintiffs’ assignors in declining to make further shipments. But they were not bound to stop then and were entitled to payment for deliveries made afterwards. The defendant’s subsequent position in wrongfully insisting upon 325 tons a month, in continuing to withhold payments and in demanding a bond amounted to a repudiation of the contract which we think justified the Waeber & Tee Company in declining to carry it out further on its part. It was not itself in default, and the acts of the defendant amounted to an absolute refusal to perform.’

It follows, for these reasons, that the plaintiffs were entitled to recover for the merchandise delivered and not paid for, and that the defendant failed to establish any claim for damages as an offset thereto. Consequently there was error in directing a verdict for the defendant instead of for the plaintiff for the purchase price of the unpaid deliveries less the conceded allowances.

The judgment of the District Court is reversed.