John Thallon & Co., Inc.
Snowcrest Packing Corp.
APPEAL from a judgment of the Supreme Court in favor of defendant, entered April 16, 1954, in New York County, upon a decision of the court at a Trial Term (BRISACH, J.), without a jury.
Myron Kommel of counsel (Kommel & Rogers, attorneys), for appellant.
John R. O'Reilly for respondent.
The appeal is from a judgment in favor of defendant after trial without a jury. The action was instituted by a buyer against a seller for damages for failure to deliver merchandise.
On July 30, 1953, plaintiff, through a broker named E. J. Basso, placed with defendant an order for 1,000 tins of pure refined lard at $14.15 per hundred weight. Plaintiff had resold the lard to Puerto Rican customers for $15.50 per hundredweight. The written confirmation provided that the lard was to contain hardening chips, and was to be delivered at a Brooklyn pier on August 5, 1953, to be loaded upon a steamship. On August 3, 1953, plaintiff placed with the defendant a second order, through the same broker, for 200 additional tins of pure refined lard with hardening chips, delivery to be made the following week. These 200 tins had also been resold to one of plaintiff's Puerto Rican customers for $16.25 per hundredweight. Defendant delivered 1,000 tins at the dock on the morning of August 5, 1953, but the shipment was rejected by plaintiff because upon inspection it was found to be liquid lard. The issues with respect to the first cause of action, which is based upon this order are (1) whether defendant upon being advised that the merchandise was not satisfactory had unconditionally agreed to replace it, and (2) if such an agreement had not been made, whether the shipment complied with the terms of the contract. The second order for 200 tins was never delivered, defendant taking the position that since plaintiff had unjustifiably rejected the first order, it was under no obligation to make delivery under the second order. For this breach plaintiff seeks damages in the second cause of action.
The trial court decided that the 1,000 tins shipped complied substantially with the specifications under which they were sold, and also ruled that plaintiff's refusal to accept the 1,000 tins rendered unnecessary any delivery of the 200 tins. Upon the evidence, we are unable to agree with the determination of the learned trial Justice.
In our view there was no justification for a cancellation by defendant of the second order. This was a separate and independent contract. It was defendant's duty to offer a tender of the merchandise called for by this agreement, and in failing to do so, it became liable to plaintiff for its breach. The damages claimed and established under the second cause of action amount to $250, which sum represents the difference between the contract price and the market price as of the time and place of delivery together with an allowance for special damages shown.
As to the first cause of action, it appears from the evidence adduced by plaintiff that after the merchandise had been unloaded on the dock on the morning of August 5th, plaintiff
sent its truck driver to obtain a sample. The driver testified that he opened one can and found the lard was in liquid form. He took a one quart jar of the lard which he delivered to his employer. He also stated that he shook thirty-five or forty of the cans and found that each contained liquid matter. Plaintiff thereupon notified the broker, Basso, that the merchandise delivered was not in accordance with the contract; that it was in liquid form and did not contain hardening chips; and that it, therefore, was unable to accept the shipment.
Basso, called as a witness for plaintiff, testified that on August 5th he was informed by plaintiff of the liquid condition of the lard at the dock; that on August 6th he saw the sample drawn by plaintiff's truck driver and found that the 'solids in the lard were separated and the top of the lard was all liquid'; that he immediately contacted defendant's president, Mr. Morris Hark, by long-distance telephone and apprised him of the fact that plaintiff had found the lard to be liquid and not in accordance with contract; and that defendant promised to replace the order the following week. It is to be noted that on this same day defendant had a truckman pick up the merchandise at the pier for its account. Basso's testimony that defendant had made an unconditional promise to replace the shipment was buttressed by the testimony of Sydney M. Washer, president of plaintiff company, who had a long-distance talk with Morris Hark on August 10th. It was defendant's contention that no unconditional agreement to replace had been made; that when Basso telephoned to apprise it of the rejection of the lard, he was told that if the lard upon analysis was found not to comply with the contract, the shipment would be replaced. However, defendant's president with whom Basso had the conversation did not testify as a witness. The only evidence offered in support of defendant's claim was tendered by an employee of defendant, who was a brother of defendant's president. This witness claimed to have 'listened in' on the conversation over the telephone between Basso and defendant's president. He testified that as he heard it, the understanding was to replace the shipment if the lard was found not to be in accordance with the contract.
In its opinion, the trial court stated: 'Upon plaintiff notifying defendant of its rejection it agreed to take back the merchandise and redeliver it for the following week for a boat then sailing.' Whether this statement was intended as a finding of ...