Coryell v. Buffalo Union Furnace Co.

• Decision Date: 15 November 1915
• Docket Number: No. 92.,92.
• Citation: 96 A. 55,88 N.J.Law 291
• Parties: CORYELL v. BUFFALO UNION FURNACE CO.
• Court: New Jersey Supreme Court

96 A. 55

88 N.J.Law 291

CORYELL

v. BUFFALO UNION FURNACE CO.

No. 92.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1915.

(Syllabus by the Court.)

Black, J., dissenting.

Appeal from Supreme Court.

Action by James B. Coryell, trustee, etc., against the Buffalo Union Furnace Company. From judgment for plaintiff, defendant appeals. Affirmed.

W. Holt Apgar, of Trenton, Edward J. Garono, of Buffalo, N. Y., and George B. Gordon, of Pittsburgh, Pa., for appellant. Grey & Archer, of Camden, and Alexander Simpson, Jr., of Philadelphia, Pa., for appellee.

MINTURN, J. J. K. Dimmick & Co. entered into a contract with defendant to sell, and under which defendant was to purchase, the requirements of two blast furnaces of defendant, estimated to be about 120,000 tons of coke during the period beginning July 1, 1912, and expiring December 31st of that year, at the net price of $2.10 per net ton of 2,000 pounds f. o. b. cars oven Connellsville region in the state of Pennsylvania. Payments were to be made on or before the 25th day of each month for all shipments made during the preceding month. The shipments were to be made in equal monthly quantities of about 20,000 tons each. These provisions supply the salient features of the contract for the determination of the question presented by the case. Subsequent to the execution of the contract, Dimmick & Co. became bankrupts, and the plaintiff was appointed their trustee. The requirement of the blast furnaces was approximately 17,740 tons per month. Dimmick & Co. furnished during July 17,053 tons and were paid on the 25th of August, as required by the terms of the contract. In August they furnished 12,905.3 tons for which they were not paid. In September 2,737.8 tons were delivered for which no payment was made. During this period a combination of the dealers in the coke trade in the Connellsville region prevented a literal and practical compliance with the terms of the contract. The defendant, in order to fulfill its business requirements, after many efforts to induce Dimmick & Co. to increase the quantity of their shipments, went into the open market and purchased coke at a rate 30 to 50 cents per ton higher than the contract rate, and notified Dimmick & Co. that such purchases were being made on their account. On September 25th, the amount due to the shipper under the terms of the contract was approximately $20,100.50 for coke actually delivered. In this situation a demand for payment was made by plaintiff, and about September 27th, the defendant through its president notified plaintiff that no remittance would be made for coke delivered unless there were moneys left over or due to plaintiff after the 1st of January. This ultimatum resulted in the rescission of the contract by the plaintiff by notice to that effect, and thereafter this suit was brought. The case was tried before the court without a jury, by consent of the par- ties, and the court found for the plaintiff for the amount of its claim, with an alternative finding which, in view of the result we have reached, must be regarded as surplusage.

No question is made as to the quantum of the judgment, and the correctness of the court's conclusion in that respect, but the legal inquiry which questions the propriety of any judgment for the plaintiff is presented as the sole...