A.B. Murray Co. Inc. v. Lidgerwood Mfg. Co.
| Decision Date | 12 January 1926 |
| Citation | 150 N.E. 514,241 N.Y. 455 |
| Parties | A. B. MURRAY CO., Inc., v. LIDGERWOOD MFG. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by the A. B. Murray Company, Inc., against the Lidgerwood Manufacturing Company. From a judgment of the Appellate Division (208 N. Y. S. 826, 212 App. Div. 868), affirming a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Appeal from Supreme Court, Appellate Division, First Department.
Thomas J. Blake, of New York City, for appellant.
William E. Carnochan and William M. Sperry, 2d, both of New York City, for respondent.
The plaintiff has recovered a judgment for the agreed price of certain tubes. The findings establish that, by contract made on the 17th day of April, 1920, the plaintiff's assignor had agreed to have specially cut for, and to sell and deliver to, the defendant certain steel boiler tubes. No time for delivery was expressly fixed in the contract. Delivery of one item of steel boiler tubes included in this contract was made on November 1, 1920. This item is not included in the tubes for which the plaintiff now seeks payment. No delivery of those tubes or offer to deliver was made until March 26, 1921, when the plaintiff mailed to the defendant an invoice for them. On April 4, 1921, the defendant notified the plaintiff by letter that it would not accept delivery of the tubes for which the plaintiff had rendered the invoice. If the defendant's refusal to accept delivery of the tubes was wrongful, the plaintiff is entitled to recover the price of the tubes, for findings, to which further reference is unnecessary, conclusively establish all the other facts which would entitle the plaintiff to maintain an action for the price of the goods, under subdivision 3, § 144, of the Personal Property Lws (Const. Laws, c. 41).
[1][2] The contract to sell does not in express terms fix the time tor delivery. The law supplies the missing term, and the contract is in legal effect an engagement on the part of the plaintiff to deliver within a reasonable time. Tender within a reasonable time is a condition which must be complied with by the seller before the buyer can be said to be in default, and performance or waiver of the condition must be pleaded and proved in an action by the seller for the price of the goods or for damages for alleged default by the buyer. Pope v. Terre Haute Car & Mfg. Co., 13 N. E. 592, 107 N. Y. 61. These well-established principles have been reiterated by this court in the recent case of Trainor Co. v. Amsinck & Co., Inc., 140 N. E. 931, 236 N. Y. 392, overruling the contention there made that in the case of Taylor v. Goelet, 101 N. E. 867, 208 N. Y. 253, Ann. Cas. 1914D, 284, we had laid down a rule which would preclude the buyer from urging that delivery was not tendered or made within a reasonable time, unless, by appropriate notice given by the buyer, time for performance was made an essential term of the contract.
[3][4][5] In the present case plaintiff, by amendment of the complaint made at the trial, has pleaded tender within a reasonable time, but the trial judge has not made any direct finding upon that point. He has found a contract made in April, 1920, and no tender of delivery made until more than eleven months thereafter. Even though, as we shall hereafter point out, inference from the testimony produced might perhaps be permissible either that delay was waived or that performance was made within a reasonable time, yet no finding based upon merely permissible inference of fact may be supplied by this court, where the court, which might have drawn such inference, chose not to do so. Certainly the trial judge never intended that such finding should be implied, for he stated his conclusion of law as follows:
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1111 Myrtle Ave. Grp. LLC v. Myrtle Prop. Holdings LLC (In re 1111 Myrtle Ave. Grp. LLC)
...783, 536 N.Y.S.2d 739, 533 N.E.2d 669 (1988) (citing Ballen v. Potter, 251 N.Y. 224, 167 N.E. 424 (1929) ; Murray Co. v. Lidgerwood Mfg. Co., 241 N.Y. 455, 459, 150 N.E. 514 (1926) ); see also N. Triphammer Dev. Corp. v. Ithaca Assocs. , 704 F.Supp. 422, 430 (S.D.N.Y. 1989). Therefore, whet......
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...judge could have made such a finding. (See People v. Roper, 259 N.Y. 170, 175--177, 181 N.E. 88, 90--91; Murray Co. v. Lidgerwood Mfg. Co., 241 N.Y. 455, 458, 150 N.E. 514, 515; Armstrong v. DuBois, 90 N.Y. 95, 99; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 49......
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...time for performance. The applicable New York law therefore fixes performance within a reasonable time. A. B. Murray Co. v. Lidgerwood Mfg. Co., 241 N.Y. 455, 457, 150 N.E. 514 (1926). What constitutes a reasonable time is a question of fact. Green Point Savings Bank v. Central Gardens Unit......
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