Azema v. Levy — 25 N.Y. St. Rep. 859

Majority

p. 859

Arthur Azema et al., Pl'ffs and App’lts, v. Berthold Levy et al., Def’ts and Resp’ts.

(City Court of New York, General Term,

Filed May 31, 1889.)

Headnote

1. Sale—When contract of, severable.

Where a contract was made by defendants with plaintiffs for the purchase of 500 bags of beans, to be delivered in two parcels of 250 bags each, at different periods, each parcel to be paid for on delivery, and the defendants refused to accept the first parcel when tendered, whereupon the plaintiffs sold the beans at auction, on notice to defendants, and realized $473.30 less than the contract price, for which loss they brought this suit, and the trial court having dismissed the complaint, on the ground that the contract being an entire contract, the plaintiffs could not recover unless they delivered or tendered the whole 500 bags, Held, (1) that the complaint was erroneously dismissed; that the contract was clearly sever able, as each parcel was to be separately paid for on delivery. The delivery of the second parcel was not a condition precedent to plaintiff’s recovery, but me -ely ground for recoupment if the second delivery was not made.

2. Same—Where seller released from tender.

Held, (2) that the refusal to accept the first parcel released the plaintiffs from making any further tender.

p. 860

The action is to recover damages for breach of a written contract, contained in the following bought and sold note:

“ Sold for account of Messrs. Arthur Azema & Co. to Messrs. Levy & Lewis, 500 bags, new (1887) crop of the usual good merchantable quality, hand picked, medium Marsellas white beans, of 250 bags to be shipped during the month of February, and 250 to be shipped during March, either direct or indirect, by steamer to New York, and on arrival to be taken from the steamer’s wharf at two dollars, seven and a half cents per bushel of sixty-two pounds, duty paid. Terms net cash.”

On March 21st, 1889, plaintiffs tendered to defendants 250' bags of beans of February shipment, and demanded the contract price, to wit: $1,831.62. The defendants rejected the beans, and did not receive them. The plaintiffs thereupon sold the beans at auction on notice to the defendants, and realized $1,356.32, that is, $473.30 less than the contract price. The present action is to recover the loss.

The trial judge dismissed the complaint on the ground that the bought and sold note was an entire contract for the delivery of 500 bags of beans, and that the plaintiffs could not recover unless they delivered or tendered the whole 500 bags.. From the judgment entered on this, direction, the plaintiffs appeal.

Fox & Stall Knecht, for app’lts; Kaufman & Sanders, for resp’ts.

The expert evidence sufficiently established the facts that the quality of the beans corresponded to that called for by the contract, and if there was any question about it, it was one which ought to have gone to the jury. The question of weights was by consent reserved, and the sole question now involved is whether the trial judge was right in holding that the contract was entire, and that recovery could not be had until the entire 500' bags of beaiis were tendered. The beans were to be shipped in two parcels, one month apart, and the defendants contracted to take each parcel as it, arrived, on the terms indicated in tire contract—“net cash.” The contract was therefore clearly severable. Each parcel was to be paid for on delivery. The delivery of the second parcel was not a condition precedent to plaintiffs recovery, but merely ground for recoupment if the second delivery was not. made. Tipton v. Feitner, 20 N. Y., 423 ; Talmage v. White, 35 N. Y. Superior Ct. Rep., 218; Aldrich v. Pyatt, 64 Barb., 391 ; Per Lee v. Beebe, 13 Hun, 89 ; Isaacs v. N. Y. Plaster Works, 67 N. Y., 124 : Withers v. Reynolds, 2 Barn. & Adol., 882.

As the sale was for the delivery of two different parcels of goods to arrive at different periods of time, each portion of the contract is complete without reference to the other. Swift v. Opdyke, 43 Barb,, 274 .

p. 861

Where the contract is silent as to the time when pa> - ment is to be made, the law will presume that the parties intended to make the payment of the price and the delivery of possession concurrent conditions. Benjamin on Sales, §§ 897, 1016.

The defendants were bound to accept each lot. tendered, if the beans corresponded with the contract, and we must assume they did, for that was withheld from the jury.

The refusal to accept the first 250 bags released the plaintiffs from making any further tender. Canda v. Wick,. 100 N. Y., 127 .

For the reasons stated, the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Hehrbas and Holme, JJ., concur.