Sigmund Ullman Co. v. Cabot

269 F. 792, 1920 U.S. App. LEXIS 1916

• Court: Court of Appeals for the Second Circuit
• Decided: November 24, 1920
• Docket: No. 44
• Status: Published

Opinion

WARD, Circuit Judge.

July 21, 1915, the plaintiff, Cabot, agreed to deliver to the Ullman Company, defendant, five cars of carbon black during the year 1915 at 4% cents per pound, upon the following terms:

“We hereby agree to take five cars of G Elf carbon black in addition to our contracts of May 1,1913, and April 9, 1915. This black to he taken during the year 1915, same terms and conditions as on our contracts, the price to be 4%c. per pound.

“It is understood that if we do not require this quantity of black during the year 1915, we are privileged to cancel the contract for whatever quantity we have not taken.”

September 26, 1917, Cabot agreed to deliver to the defendant and the defendant agreed to take 24 cars of carbon black at 20 cents per pound, subsequently reduced by agreement to 15 cents.

Cabot brought this action to recover the price of one car shipped in March, 1918, at 15 cents per pound, $4,826.25. The Ullman Company pleaded as a set-off that Cabot had failed to deliver two cars under the contract of July 21, 1915, to its damage $3,392.85, and tendered the difference between the amount of its damage aforesaid and the sum sued for, $4,826.25, viz. $1,433.40.

September 26, 1915, Cabot asked the Ullman Company for shipping instructions for the three cars then undelivered under the contract of July 21, 1915, but only an order of December 20, 1915, for one car was given in 1915.

Judge Mack held that the contract of July 21, 1915, gave the plaintiff an option to take any -or all of five cars in 1915 and, no orders having been given in that year for the two undelivered cars, the option terminated, and they could not be ordered out subsequently. Accordingly lie directed a verdict for the plaintiff, and the defendant took this writ of error.

The Ullman Company contends that, as it did not expressly cancel the contract of July 21, 1915, it continued in force. We think the contract was rightly construed, because it was intended to meet the Ullman Company’s requirements in 1915, and the cars were to be ordered in that year, after which it expired by its own limitation.

The judgment is affirmed.