Robinson v. Frank — 107 N.Y. 655

Majority

p. 655

Marvin S. Robinson, Respondent, v. Andrew H. Frank, Appellant.

(Submitted October 18, 1887;

decided November 29, 1887.)

Headnote

Defendant contracted to sell and deliver to one Frank, plaintiff’s assignor, 1,500 drag sawing machines. The contract contained a provision that in case defendant should fail

p. 656

to manufacture and deliver the machines as provided for and should remain in default for thirty days after written notice, then that Frank, without further notice, might sue and recover of plaintiff four dollars for every machine not delivered. Defendant delivered 100 machines under the contract, and .then, as the trial court found, absolutely refused to manufacture and deliver any more.

This action was brought to recover pay for each machine not delivered. The defense was that the thirty days notice was not given as prescribed in the contract.

Rogers, Locke de Milbwn for appellant.

Spencer Clinton for respondent.

The following is the mem. of opinion:

“Very likely the defendant is right in his construction of the terms of the contract, and that the notices were required in conformity with his views of its requirements.

“We think, however, there was sufficient evidence upon which to base the finding of the trial • judge, that the defendant ceased and refused to manufacture the machines under the contract, and so hotified the plaintiff or his agent. The refusal was. absolute and total, and it is not pretended that defendant ever withdrew it. It was ample excuse and justification to the plaintiff for his omission to make any further demand or to serve any other notices than the last one, which it is admitted or proved that he did serve. (Shaw v. Republic life Insurance Co., 69 N. Y. 286 .)

“ There are no merits in the appeal, and the judgment should be affirmed, with costs.”

for affirmance.

All concur.

Judgment affirmed.

Cases cited

Shaw v. Republic Life Insurance 69 N. Y. 286 N.Y. 1877-04-10 p. 656