Edison Elec. Illuminating Co. of Brooklyn v. Thacher

• Decision Date: 01 June 1920
• Citation: 229 N.Y. 172,128 N.E. 124
• Parties: EDISON ELECTRIC ILLUMINATING CO. OF BROOKLYN v. THACHER.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 172

128 N.E. 124

EDISON ELECTRIC ILLUMINATING CO. OF BROOKLYN

v.THACHER.

Court of Appeals of New York.

June 1, 1920.

Action by the Edison Electric Illuminating Company of Brooklyn against Thomas O. Thacher. From a judgment of the Appellate Division, Second Department (186 App. Div. 966,173 N. Y. Supp. 905), affirming by a divided court, a judgment of the Trial Term, entered upon a verdict directed for plaintiff, defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

John A. Delehanty, of Albany, for appellant.

Ingraham, Sheehan & Moran, of New York City (George L. Ingraham and Carl A. Rood, both of New York City, of counsel), for respondent.

CRANE, J.

The Edison Electric Illuminating Company of Brooklyn entered into a contract with the defendant in writing dated March 31, 1915, wheren the defendant agreed to furnish to the plaintiff iron manhole frame and cover castings as required in its business for a period of 12 months from April 1, 1915. The defendant furnished 500 tons of these covers, but refused to deliver any more at the contract price. The contract price was $1.30 per 100 pounds. The plaintiff was obliged to buy 254,370 pounds in the market at $1,89 per 100 pounds, and thereafter sued for the difference in cost, or $1,500.78. The defendant, in his answer, claimed that the contract as made only called for 500 tons, and that he rightfully refused to deliver more covers except at the increased and increasing market price. The question upon the trial was to determine the contract which the parties had made. The defendant set up a counterclaim, but this was withdrawn. The plaintiff had a verdict for the full amount directed by the court upon a motion made by both parties, and the judgment entered thereon was affirmed by the Appellate Division by a divided court. The dissenting justices thought that the written contract was not complete, and could be explained and added to by prior correspondence.

There are two points presented upon this appeal: First. Is there an enforceable contract? Second. Was the prior correspondence between the parties competent to prove that only 500 tons were to be delivered in the year at the price fixed?

The contract in part reads as follows:

‘First. The contractor hereby agrees to furnish all materials and labor necessary and will supply to the company from time to time as per orders received, good sound manhole frame and cover castings, made from the best quality of gray iron, free from cracks, blow holes, cinders or other defects-figures RT6, RT12, O6, 012, for the term of 12 months from April 1, 1915, and thereafter, until thirty days' written notice has been given by either party to the other of its desire to terminate this agreement. * * *

‘Third. The company will notify the contractor, as far as possible in advance of any probable requirements of such manhole castings, in order to aid the contractor in maintaining sufficient supply of same to meet the orders of the company. * * *

‘Payments.

‘Fourth. For the said period of 12 months and thereafter until this agreement is terminated, in the manner above prescribed, the terms net 30 days or 1% cash, 10 days, the company agrees to pay to the contractor $1.30 per 100 lbs. for castings as hereinbefore mentioned: (RT12, 012; RT6, 06) as per contractor's quotation to the purchasing agent of March 31, 1915, it being understood that castings are to be delivered in lots of one or more on the job in any portion of the borough of Brooklyn as required by the company. The price named does not include the cost of patterns, but should any change in the patterns be required, the contractor agrees to do such work free of charge. * * * In the event of strikes, accidents or other hindrances beyond the control of the contractor, preventing the delivery of castings, the company reserves the right to place this contract elsewhere, or at its option to permit the contractor to sublet the same upon the guaranty of a prompt delivery and at the price above stated.’

Analyzed, the agreement is to supply the company from time to time as per orders received with manhole frame and cover castings. Either party on 30 days' notice may terminate the agreement. The company will notify the contractor in advance of its requirements and in the event of strikes the company has the right to place the contract elsewhere.

[1] The intention is quite apparent that the company also obligated itself to take from the defendant all covers required by it, and could only go elsewhere for them in case of strike or noncompliance by the defendant with the terms of the contract.

[2] This obligation upon the part of the company is evident from a reading of the whole instrument, and is the only reasonable inference to be drawn from its provisions. It is not necessary in all cases that the agreement of a party should be specifically stated. It is sufficient when the wording used clearly indicates the intention. As heretofore stated by this court, contracts, unlike deeds and insurance policies, need not take a prescribed form but are spelled out of the phrasing adopted by the parties. Wood v. DuffGordon, 222 N. Y. 88, 91,118 N. E. 214;City of New York v. Delli Paoli, 202 N. Y. 18, 94 N. E. 1077;Moran v. Standard Oil Co., 211 N. Y....