Fowler v. Rigney — 5 Abb. Pr. 182

Majority

p. 182

FOWLER against RIGNEY.

New York Common Pleas ;

Special Term, 1867.

Headnote

Complaint.—Contract to Purchase at Seller’s Option.—Notice and Demand before Suit.

A stipulation to deliver “ between” certain days excludes the last day named. Under a contract to purchase merchandise tó be delivered at the seller’s option, “ between" the date of the contract, and a specified day, four days' notice of delivery to be given,—-the last day for the delivery is the day before the specified day fixed by the contract.

In order to sustain an action for refusal to receive the merchandise, the seller must give the four days’ notice, on or before the fifth day before the day specified in the contract.

Demurrer to complaint.

This action was brought by Frederick R. Fowler, William C. Fowler, and Mahlon B. Crampton, against Thomas Rigney and Henry J. Creighton, who composed the firm of Thomas Rigney & Co.

The complaint-alleged that the defendants, through a broker, one McManus, bought fifty tons of oil cake by the following agreement, which was signed by the broker, and also by the defendants:—

“New York, September 15, ’64.

“ I have this day purchased, of Messrs. F. R. and "tY. C. Fowler and Crampton, for Messrs. Thomas Rigney and Co., fifty tons oil cake in bags (2,000 lbs. to the ton), deliverable between this date and October 15, seller's option, barring accidents to mill and strikes of workmen, at 92 ftPo dollars per ton, delivered free on board buyer’s vessel. If foreign seed, sellers to have benefit of drawback. Buyer to furnish landing certificates, four days' notice of delivery to be given."

p. 183

It was also alleged that on the 12th day of October, 1864, and also on the 15th day of October, 1864, the plaintiffs were ready, and on each of those days notified the defendants that they were ready to deliver the oil cake, and requested the defendants to specify the vessel on board which they should deliver it. That the defendants, on each occasion, declined to receive it, alleging that plaintiffs had not fulfilled the contract as to the time of notice.

They then alleged that, after giving notice to the defendants that they should do so, they sold the oil cake ; and asked judgment for the deficiency.

The defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

Elial F. Hall, in support of the demurrer.

Thomas Nelson, opposed.

—The complaint sets forth that the plaintiffs agreed to sell, and the defendants to buy, fifty tons of oil cake, deliverable between the the 15th of September and the 15th of October, 1864, seller’s option, to be delivered free on board buyer’s vessel; buyers to furnish landing-certificates, and four days’ notice of delivery to be given. That on the 12th of October, 1884, the plaintiffs notified the defendants that they were ready to deliver, and requested the defendants to specify the vessel on board which the delivery was to be made. That the defendants declined to receive the oil cake, alleging that the plaintiffs had not fulfilled the contract as to the time of the notice of the delivery required by it. That the plaintiffs renewed their offer and request on the 15th of October, but the defendants again refused, assigning the same reason.

The defendants demur to the complaint, and the point raised by the demurrer is, whether the notice given by the plaintiffs on the 12th of October, of their intention and readiness to deliver, was sufficient under the contract.

p. 184

I think it was not. The delivery was to be between the 15th of September and the 15th of October; that is, it was to be before the 15th of October, and four days’ notice of it was to be given. The last day for the delivery was the 14th of October, and four days’ notice of an intention to deliver on that day should have been on the 10th. It was given on the 12th, and that was not a notice to deliver on the 14th, but on the 15th. It was too short, and the defendants, not having been notified in the mannér provided by contract, of an intention to deliver on or before the 14th, were discharged from any further liability upon it (Atkyns v. Boylston Ins. Co., 5 Metc., 439 ; Bunce v. Reed, 16 Barb., 347 ; 2 Pars. on Cont., 177, note).

The plaintiffs insist that the true construction of the contract is this : That they had the whole of the time between the 15th of September and 15th October to elect or not to deliver, and that if they notified the defendants at any time before the 14th, of their intention to deliver, they were to notify them at the same time that the delivery would be made four days thereafter ; or, to make it more plain, that they could notify the defendants on the 14th that they would deliver on the 18th. But I do not so read the contract. It expressly provides that the oil cake “ is deliverable between this date (15th of September, the date of the contract), and October 15th, seller’s option,” and “four days’ notice [is] to-be given.” The plain import of this language is that if the plaintiffs elect to deliver they must deliver within that period, and give »four days’ previous notice of the time, that the defendants may have their vessel ready and be prepared at the time-with landing certificates.

The demurrer is well taken,' and the defendants are entitled to judgment.