Standard Fashion Co. v. Thomas

119 A. 417, 96 Vt. 319, 1923 Vt. LEXIS 169

• Court: Supreme Court of Vermont
• Decided: January 4, 1923
• Status: Published

Opinion

Watson, C. J.

The record shows an agreement by the parties that this case should be tried and determined upon the agreed statement of facts and the exhibits made a part thereof. We understand the force of this to be that the trial and determination should be as warranted by the agreed facts, treating the pleadings as sufficient therefor, and we proceed accordingly.

The plaintiff contends that on the facts and exhibits so of record defendant is indebted to it in the aggregate sum of $198.25, for goods sold and delivered to him under the contract of agency, together with items of interest, (on the standing credit) and charges for transportation, both also provided for by the contract, on the ground that he breached the. contract in not paying the sum of $67.10, which plaintiff says had accumulated during a period of seven months, and because of such breaches he elected to terminate the contract, which resulted, plaintiff claims, in loss to defendant of the privilges of returning patterns for credit, full performance for the entire term, plaintiff further claims, being a condition precedent to the right so to return patterns at all. That the record shows items of indebtedness from him to plaintiff by the terms of the contract, amounting to the sum first named, defendant does not deny; but he says the record also shows that he is entitled to recover of plaintiff the sum of $306.76, it being 75% of the cost price of the patterns returned by him on October 24, 1918, and also the sum of $18.05, for discarded patterns previously returned to and accepted by plaintiff but for which the latter never delivered new patterns in exchange, the total amount so due him being $324.81, with interest ; further claiming the right to have this sum set-off against any sum .found due to plaintiff, and to have judgment for the amount remaining due after such set-off is made.

The contention that defendant’s failure to pay in full for the several monthly shipments of goods on the days they became due were breaches that went to the essence of the contract and relieved the seller from further performance, cannot be sustained. It appears that $67.10 was the aggregate of the sums unpaid on such several shipments, covering a period of seven months. The shortage for any particular month, or months less than the whole number, does not appear, nor does it appear that there was such shortage in each and every month of the seven, nor of which months if less than all. it should seem that each month’s shipment was in part at least paid when due; and it is not pointed out how an accumulation of partial defaults of that nature can be said to go to the essence of the contract and relieve the other party from further performance. The partial failure to pay on the dajr full payment became due,, after the sale and delivery, of the goods, was not a repudiation of the contract by defendant, nor did it afford the plaintiff any ground on which to justify future non-performance. Martindale v. Smith, 1 Q. B. 389; Daley v. Peoples’ Building, etc., Assn., 178 Mass. 13, 59 N. E. 452. No separate partial breach, if acted upon by the other party within a reasonable time, is shown to have been of sufficient importance to justify treating the whole contract as terminated and as being transformed into a right of action for damages. 3 Williston on Cont. Sec. 1290.

Although defendant gave no special orders for goods after April 29, 1918, his regular standing order on which plaintiff, from time to time, had sold and delivered to him goods to keep his stock of patterns up to date, was not revoked, but remained in force and could have been acted upon by plaintiff. Defendant accepted all patterns ever shipped or delivered to him; and until October 24, 1918, except at the specified exchange periods, he kept on hand a stock of patterns purchased of plaintiff, the cost price of which was more than required by the terms of the agreement, at all times offering them for sale to customers.

One of the material provisions'of the contract was that allowing defendant to return discarded patterns semi-annually, within specified periods, in exchange for new patterns. It was for the interest of both parties that defendant’s stock be kept up to date, to the end that only the latest styles be included, thereby maintaining their favorable reputation, and realizing satisfactory results in competing with other makes of patterns. It goes without saying that the defendant must act upon instructions from the plaintiff as to what patterns in his stock should be discarded and returned. He could not be expected to acquire the necessary information from any other source. The contract in this respect could not be carried out as was obviously contemplated by both parties that it should be carried out, without plaintiff’s furnishing the defendant with such information in season for him to act in the matter at each discard period, and since the furnishing of this information at the times mentioned was not expressly provided for in the agreement, there was an implied obligation therein resting upon the plaintiff so to do. Rioux v. Ryegate Brick Co., 72 Vt. 148, 47 Atl. 406; Ambrosini v. Pellaggi & Co., 94 Vt. 119, 108 Atl. 916. This implied obligation went to the essence of the contract, and when the plaintiff failed and refused to furnish defendant, on his request, with the information required to show what patterns he was entitled to discard and return at the discard period between July 15, 1918, and August 15, following, it was a breach of the contract by plaintiff which justified the termination of it by defendant. The Kioux case is full authority for this holding. The actions of the plaintiff in this respect made manifest that it was not going to perform the contract in the future, as it in fact did not, and this constituted the first substantial breach by either party. Moreover, its non-performance of this implied provision must have operated to prevent defendant from keeping the quality of his stock of patterns up to date, and consequently prevented him from the required performance in this respect.

The contract contains a provision whereby it could be terminated by either party by giving notice in writing to the other within a specified time after the expiration of any contract period, the agency to continue dui’ing such three months; and upon the expiration of such notice, defendant therein agrees to return promptly to plaintiff all patterns then on hand, which plaintiff agrees to credit him on receipt at three-fourths cost, .paying him within thirty days thereafter in cash, any balance due. Instead of terminating the contract in the manner and at the time thus pointed out, the plaintiff, outside the time specified and without justifiable cause, repudiated it, giving defendant no notice thereof other than by its acts in failing and refusing to perform, as stated above. Within its scope, the provision giving defendant the right to return all patterns on hand at the end of the agency and receive credit therefor, the balance to be paid by plaintiff in cash within a time limited, was binding on the parties, and the benefit thereof to defendant could not be circumvented by plaintiff’s wrongful repudiation of the agreement, thereby ending it in some other manner. Plaintiff bases its right of recovery upon the terms of the contract of agency. It claims under that contract for goods sold and delivered in the execution of the agency. In like manner defendant has a right to the credits given him by that agreement in the adjustment, between the parties, of the affairs of the agency at its termination.

It is said, however, that if it be held that defendant is entitled to have his claim allowed, it can go only to the extent of plaintiff’s claim, for the reason that no declaration in set-off, asking for judgment, has been filed. But as stated in the first paragraph of this opinion, this position is obviated by the agreement of the parties.

Judgment reversed and judgment for defendant to recover the sum of $126.56 with interest from November 26, 1918, to the day of payment, and his costs.