Hardie v. International Milk Products Co.

Headnote

Pleading — action for breach of contrac t — sufficiency of separate defense.

Hardie v. International Milk Products Co., 201 App. Div. 67 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 12, 1922, which reversed an order of Special Term granting a motion by plaintiff for judgment upon the pleadings and denied said motion. The action was for breach of an alleged contract by the terms of which defendant agreed to sell to plaintiff certain milk products during the continuance of a certain contract or renewals thereof entered into between defendant and the Bent Milk Food Corporation. The answer alleged as an affirmative defense that about the 1st day

of January, 1917, the Bent Milk Food Corporation sold its plant, canceled its contracts with its patrons for the purchase and receipt of milk, and discontinued operations at its plant and that its vendee refused to recognize its contract with the defendant or to deliver or permit it to receive any milk at the plant and declined to allow defendant to continue its manufacture of milk products therein.

The following questions were certified: “1. Upon the allegations of the pleadings read in connection with the stipulation entered into between the attorneys for the parties hereto, is the defendant herein liable in damages for breach of contract? 2. Do the facts alleged in said amended answer of the defendant herein read in connection with said stipulation constitute a defense herein? 3. Do the facts alleged in said amended answer, to wit, the sale to the Hires Condensed Milk Company and the subsequent transactions as set forth therein, when read in connection with said stipulation, constitute a cause beyond the control of the defendant as intended by the contract alleged to have been violated? ”