Wester v. Casein Co. of America

tract unless the goods were inspected and paid for in New York. That, of course, was not the provision of the contract.' The plaintiffs then immediately cabled to the defendant, and said they would sue for breach of contract, and would sell the goods for account of whom it might concern. Therefore, as far as the issues in this case are concerned, that contract between the plaintiffs and the defendant was broken by the defendant on the 3d of December, 1904. The only question for you to determine, then, is: What damage was suffered by plaintiffs by reason of this breach of the contract by defendant on December 3, 1904?”

. To this there was no objection or exception, and no request to charge. Upon the motion to dismiss upon the ground of want of jurisdiction, and to set aside the verdict, which was reserved, the court in its opinion said:

“On November 28, 1904, the plaintiff cabled from Buenos Ayres to the defendants at New York: ‘Credit demanded is for two hundred and' twenty-five tons of own. Answer immediately by Western Union Telegraph Company, and telegraph credit.’ The defendants answered the next day by cablegram from New York: ‘Must insist upon inspection and payment destination.’ This last cablegram constituted the breach of contract, and I think the breach took place when and where the cablegram was delivered to the cable company for transmission.”

Both sides quote from Hibernia National Bank v. Lacombe, 84 N. Y. 367 , 38 Am. Rep. 518 , where the Court of Appeals cited with approval the language used in Durham v. Spence, L. R. 6 Ex. Cas. 46:

“The cause of action must have reference to such time as well as such place. Does, then, the consideration of time when the cause of action arises give us any assistance in determining the place where it arises? I think it does. The cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done; but the time when the cause of action arises determines also the place where it arises, for, when that occurs which is the cause of action, the place where it occurs is the place where the cause of action arises.”

Under the facts in this case, the plaintiffs had 225 tons of casein at Buenos Ayres, which, under the contract, it was the duty of the defendant to there inspect and pay for. They did not inspect and pay for these goods at that time and place, and hence there was a breach of the contract: It was such a breach as authorized the plaintiffs to rescind the whole contract and sue for damages, to wit, the value of the contract to them; and this they did. The breach was the refusal to pay, and this occurred at Buenos Ayres. The cablegram was evidence of such breach.

The appellant claims that the rule of law applicable to negotiations for a contract entered into by correspondence is to be applied. It is familiar law that when an offer is submitted by correspondence, and an acceptance is placed in the mail, the minds of the parties have met, andl the contract is completed. But it is also true that an effort to withdraw from or revoke the offer is not effectual until its receipt by the other party before acceptance. In Patrick v. Bowman, 149 U. S. 411 , 13 Sup. Ct. 811 , 866, 37 L. Ed. 790 , it is said:

“The authorities are abundant to the proposition that, when an offer is made and accepted by the posting of a letter of acceptance before notice of withdrawal is received, the contract is not impaired by the fact that a revocation had been mailed before the letter of acceptance. * *- * It cannot be

withdrawn, unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been transmitted.”

So, where the termination of a contract depends upon notice, it has been held that it is the receipt of the notice, and not the mailing of it, which terminates the contract. In Crown Pt. Iron Co. v. Ætna Ins. Co., 127 N. Y. 608 , 28 N. E. 653 , 14 L. R. A. 147 , Vann, J., said:

“It is contended by the defendants that the mailing of the policies with a letter stating the object sufficed to cancel them, because it was equivalent to the acceptance of a proposition by mail. * * * Those cases have no application here, because no negotiation was pending and no contract was proposed. * * * It was necessary for the plaintiff, in order to terminate the policies, to have its notice actually reach the companies or their representatives, and the instrument selected for that purpose was the agent for the plaintiff, not of the defendants. If the letter never reached the companies, they would not have been hound; or if it reached them after long delay, they would have been bound only from the day of the receipt.”

We think that it was not the sending of the cablegram, but its receipt in Buenos Ayres, coupled with the refusal there to receive and pay for the goods, and the election by the plaintiffs to regard said acts as a breach of the entire contract, and to rescind and sue for damages, that constituted the breach. Wherever there has been an obligation to pay and a refusal, the court has held that the place of payment and the failure to there pay was the place where the cause of action arose when the action was for damages for a breach. So in the Hibernia National Bank Case, supra, where the plaintiff, a .national bank, organized and having a place of business in New Orleans, purchased for value of defendant, the Mechanics’ & Traders’ Bank, a Louisiana corporation, a draft drawn on bankers in the city of New York, payable to plaintiff’s order. The draft was duly presented to the payees at New York, and payment refused. It was duly protested, and notice given to the drawer, and the court said:

“That the cause of action in the case before us arose, where the draft by its terms was payable, when payment was refused and notice given. These things constituted a cause of action, and it has arisen within this state.”

In the case at bar the contract was executed in Argentina. It was to continue for three years. It provided for the manufacture of goods in Argentina, to be there inspected by agents of the defendant in comparison with samples there deposited, for the delivery there of the goods and payment at Buenos Ayres therefor. The goods were not there inspected, accepted, or paid for. To hold that the cause of action arose anywhere else than in Buenos Ayres, upon those facts, would be a legal fiction.

The judgment and order appealed from should be reversed, and the complaint dismissed, upon the ground that the courts of the state of1 New York have no jurisdiction over the cause of action, with costs to the appellant.

MCLAUGHLIN, LAUGHLIN, and DOWLING, JJ., concur.

(dissenting). I do not agree that the court had no jurisdiction, as I think there was a breach of the contract within

I have examined the objections taken by the defendant upon the trial, but I do not think they require a reversal of the judgment.

The judgment and order should therefore be affirmed.