Canda v. Wick
| Decision Date | 06 October 1885 |
| Citation | 100 N.Y. 127,2 N.E. 381 |
| Parties | CANDA and others v. WICK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
John L. Lindsay, for appellant, Jacob Wick, Jr.
J. Woolsey Shepherd, for respondents, John M. Canda and others.
The referee found, upon sufficient evidence to justify the finding, that the reasons assigned by the defendant on the twenty-first of September, 1881, for refusing to receive the balance of the brick of the cargo of the schooner Ellen were groundless. He further found that the brick were of the quality specified in the contract, and that there was sufficient available space for piling them. Upon the defendant's refusal to permit the plaintiffs' cartmen to continue the delivery, the plaintiffs offered to deliver the balance of the cargo, and stated to the defendant that if brick advanced in price they could not be held responsible for the delivery on the contract. The defendant persisted in his refusal to receive any more brick from the cargo of the Ellen, assigning the reasons before stated, viz., defective quality and want of space.
The plaintiffs had a right to make delivery on the contract on the twenty-first of September. The written memorandum is silent as to the time of delivery, but the evidence shows that prompt delivery and acceptance were contemplated, and that this was one of the conditions upon which the plaintiffs entered into the contract. The tender and refusal constituted, we think, a breach of the contract by the defendant. It was not necessary that the plaintiffs should tender the whole 400,000 brick in order to put the defendant in default. It was not contemplated that the entire number should be delivered in one mass, but, as is evident from the situation of the parties and the surroundings, they were to be delivered from time to time, at the convenience of the plaintiffs, and without delaying the defendant in prosecuting the work in which they were to be used: When the defendant refused, without adequate reason, to accept the cargo of the Ellen, the plaintiffs were at liberty to treat the contract as broken, and were not bound to make an actual tender of the remainder of the brick before bringing the action. This would have been a useless ceremony. The warning given by the plaintiffs to the defendant, that his refusal would absolve them from any obligation on the contract, was not, as is claimed, equivalent to an assertion of a right on their part to regard the contract as still subsisting...
To continue reading
Request your trial
-
Don King Productions, Inc. v. Douglas
...parties to perform thereunder." S.D. Hicks & Son Co. v. J.T. Baker Chemical Co., 307 F.2d 750 (2d Cir.1962); see also Canda v. Wick, 100 N.Y. 127, 2 N.E. 381 (1885). This dispute, however, falls outside the line of cases in which waiver does not attach because the party "attempts to encoura......
-
Carco Group, Inc. v. Maconachy
...686 F.Supp. 1015, 1023 (S.D.N.Y.1988) (citing S.D. Hicks & Son Co. v. J.T. Baker Chem. Co., 307 F.2d 750 (2d Cir.1962); Canda v. Wick, 100 N.Y. 127, 2 N.E. 381 (N.Y.1885)). This right to rely upon representations of improved performance provides [W]here the nondefaulting party brings his or......
-
Black River Lumber Co. v. Warner
... ... Westlake v. The City of St. Louis, 77 Mo. 47-51; ... Deichmann v. Deichmann, 49 Mo. 107; Mastin v ... Grimes, 87 Mo. 478; Canda v. Wick, 100 N.Y ... 127; Ripley v. McLure, 18 L. J. Ex. 419; Goodwin ... v. Holbrook, 4 Wend. 377; Pearson v. Mason, 120 ... Mass. 53; ... ...
-
Lagerloef Trading Co., Inc. v. American Paper Products Co. of Indiana
... ... Newsom, Sons & Co., ... (1919) A.C. 16, 53; Braithwaite v. Foreign Hardwood Co., ... (1905) 2 K.B. 543; Brown v. Muller, L.R. 7 Exch. 319; Canda ... v. Wick, 100 N.Y. 127, 2 N.E. 381; Bank of Columbia v ... Hagner, 1 Pet. 455, 7 L.Ed. 219; 13 Corpus Juris, pp. 655, ... 656, note 82; Cort ... ...