Loomis v. Norman Printers' Supply Co.

• Citation: 71 A. 358,81 Conn. 343
• Court: Supreme Court of Connecticut
• Decision Date: 18 December 1908
• Parties: LOOMIS v. NORMAN PRINTERS' SUPPLY CO.

71 A. 358

81 Conn. 343

LOOMIS

v. NORMAN PRINTERS' SUPPLY CO.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge.

Action by Edwin F. Loomis against the Norman Printers' Supply Company for breach of a contract of conditional sale. From a judgment for plaintiff, defendant appeals. Error found, and new trial ordered.

September 16, 1905, the defendant made a conditional sale to the plaintiff of two printing presses and a paper cutter. June 2, 1906, and before the terms of this contract had been fully executed, it was by mutual agreement rescinded and a new contract of that date entered into. This contract, like the former, was a conditional sale of certain presses, printers' machinery, and equipment, whose rental and purchase price was fixed at $970. The defendant claimed that into this amount there entered the sum of $250, agreed by the parties to have been due the defendant under the surrendered contract. This sum of $970 was to be paid to the extent of $045 by goods sold and to be delivered by the plaintiff to the defendant, and the plaintiff was to give the defendant his monthly installment notes, 13 in number, each for $25 and payable on the 9th day of each of the following months, beginning with July 9, 1906. The contract provided that the defendant should make delivery of its articles "boxed on cars at its factory about June, 1906." The notes were given as agreed, and the articles to be received from the plaintiff were all sent to and received by the defendant, excepting one press. The articles which the defendant agreed to deliver to the plaintiff have never been delivered. July 6, 1906, the plaintiff's attorney wrote the defendant a letter, duly received, in which the defendant was charged with a breach of the agreement by reason of its delay in delivery, and informed that the plaintiff declined to accept the goods, and would not receive them if shipped. The letter demanded payment of the $645 and threatened suit. The defendant claimed to have shown that immediately upon the execution of the contract it commenced to put the machinery ordered into condition for shipment; that on June 8, 1900, it received a telegram, followed by a letter, directing that shipment be withheld and requesting changes in the contract; that, when the letter of July 6th was received, the goods were ready for shipment; and that by reason of the plaintiff's refusal to accept the goods therein contained, which has been since persisted in, they have, save a single small article, remained unshipped and in the defendant's hands subject to the contract. The plaintiff testified that in June, and subsequent to the 8th, he wrote to the defendant a number of unanswered letters requesting shipment. Upon the trial the plaintiff claimed that the defendant had broken the contract by not delivering according to its terms. The defendant claimed that the period within which it was entitled to ship the goods pursuant to the contract had not expired when the letter of July 6th was received; that it was thereby prevented from carrying out its terms, which it stood ready to carry out and otherwise would have carried out; and that the plaintiff's unlawful conduct alone has been responsible for the nonexecution by the defendant of the terms of the contract. None of the notes have been paid. The defendant filed a counterclaim in which it was set up that at the time of the execution of the contract in suit the plaintiff was indebted to the defendant, as the parties agreed, in the sum of $250 under the terms of the previous contract which was canceled, that this sum was included as a part of the consideration of the later contract, and that the same had not been paid. Judgment for the recovery of this sum or of so much thereof as was in excess of the plaintiff's claim was asked. The requests to charge and instructions given, in so far as they are involved in the questions discussed, are sufficiently stated in the opinion.

Richard H. Tyner, for appellant.

George E. Beers and Charles H. Harriman, for appellee.

PRENTICE, J. (after stating the facts as above). Numerous errors are assigned. Only those relating to a few subjects, however, call for consideration.

The court was asked to instruct the jury, in substance, that the words "about June, 1900," used in the contract between the parties to define and limit the time within which the defendant was to make delivery of the printers' machinery and equipment which were the subject of the contract, in the absence of a peculiar trade meaning to be attached to them, were to be taken in their ordinary meaning, that this meaning fixed the time as any time in June, 1900, or a reasonable time thereafter, and that any time during the succeeding month of July might he and was to be regarded as such reasonable time, so that if the defendant was ready and willing to make the delivery at any time within the latter month and was prevented from so doing by the plaintiff's refusal to accept the goods, the plaintiff could not recover. The court charged that by the terms of the contract the defendant had the month of June and a reasonable time thereafter within which to make the delivery, and left to the jury the determination of the question of what was a reasonable time in view of all the circumstances. The court did not err either in declining to charge as requested or in charging as it did. What is a reasonable time under the circumstances in any given case is for the jury. Tomlinson Carriage Co. v. Kinsella, 31 Conn. 208, 273; Cohen v. Pemberton, 53 Conn. 221, 235, 2 Atl. 315, 5 Atl. 82, 55 Am. Rep. 101; Oley v. Miller, 74 Conn. 304, 310, 50 Atl. 744. Although a question for the jury, it is not to be understood that a period of time might not be so short or so long that a court would under proper conditions, be justified in declaring it unreasonable. Kellogg v. Denslow, 14 Conn. 411, 426; Maher v. People, 10...