Alsens American Portland Cement Works v. Degnon Contracting Co.

• Decision Date: 27 November 1917
• Citation: 222 N.Y. 34,118 N.E. 210
• Parties: ALSENS AMERICAN PORTLAND CEMENT WORKS v. DEGNON CONTRACTING CO.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 34

118 N.E. 210

ALSENS AMERICAN PORTLAND CEMENT WORKS

v.DEGNON CONTRACTING CO.

Court of Appeals of New York.

Nov. 27, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Alsens American Portland Cement Works against the Degnon Contracting Company. Judgment in favor of plaintiff, and it appealed. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (166 App. Div. 922,151 N. Y. Supp. 1101) affirming by a decision not unanimous, plaintiff appeals. Reversed, and new trial granted.

The nature of the action and the facts, so far as material, are stated in the opinion.

Arthur A. Michell, of New York City, for appellant.

Charles Adkins Baker, of New York City, for respondent.

COLLIN, J.

The action is to recover the purchase price, at the rate of $1.62 per barrel, of cement sold by the plaintiff to the defendant. The trial justice directed a verdict based upon the purchase price of $1.41 per barrel. A question to be determined, under proper exceptions, is whether or not there was any evidence creating a question of fact to be submitted to and determined by the jury.

The evidence is free of contradiction. The undisputed facts, briefly and adequately stated, are: In May, 1909, the parties entered into a contract which provided for the sale by the plaintiff to the defendant of 175,000 barrels of cement, to be totally ordered for shipment by the defendant before March 1, 1913, at the price of $1.41 per barrel. On March 1, 1913, there remained unordered for shipment 36,000 barrels. Between March 1, 1913, and May 8, 1913, the defendant ordered of and received from the plaintiff 1,900 barrels. Throughout that period the market value was $1.62 per barrel. The plaintiff by this action claims that the 1,900 barrels were not sold under the contract, and should be paid for (except the first two shipments) at the market value. The defendant claims that the sale was within the contract, and the plaintiff should be paid $1.41 per barrel.

The defendant rightly concedes that the defendant was bound by the contract to order for shipment before March 1, 1913, the total amount of 175,000 barrels, and after that date the plaintiff was free to refuse to make any delivery under the contract. It asserted at the trial and asserts here that the stipulation of the contract thus binding it was, as a matter of law, waived by the acts of the plaintiff. Therein it errs. Under the evidence, whether or not there was a waiver on the part of the plaintiff was a question of fact determinable by the jury.

In reversing the judgment and granting a new trial, we may not with propriety attempt to define the effect due, in our opinion, to any part of the evidence. A waiver, not express, found in the acts, conduct, or language of a party, is rarely established as a matter of law rather than as a matter of fact. This conclusion inheres in its nature and character. A waiver is an intentional abandonment or relinquishment of a known right or advantage which, but for such waiver, the party would have enjoyed. It is the voluntary act of the party, and does not require or depend upon a new contract, new consideration, or an estoppel. It cannot be recalled or expunged. Hotchkiss v. City of Binghamton, 211 N. Y. 279, 105 N. E. 410;Clark v. West, 193 N. Y. 349, 86 N. E. 1;Draper v. Oswego Co. Fire Relief Ass'n, 190 N. Y. 12, 82 N. E. 755;Zwietusch v. Luehring, 156 Wis. 96, 144 N. W. 257. It is essentially a matter of intention. Negligence, oversight, or thoughtlessness does not create it. The intention to relinquish the right or advantage must be proved. Occasionally it is proved by the express declaration of the party, or by his undisputed acts or language so inconsistent with his purpose to stand upon his rights as to leave no opportunity for a reasonable inference to the contrary. Then the waiver is established as a matter of law. Commonly it is sought to be proved by various species of proofs and evidence, by declarations, by acts, and by nonfeasance, permitting differing inferences, and which do not directly,...