First Nat. Bank v. Pipe & Contractors' Supply Co.

• Decision Date: 20 April 1921
• Docket Number: 192.
• Citation: 273 F. 105
• Parties: FIRST NAT. BANK OF LITCHFIELD v. PIPE & CONTRACTORS' SUPPLY CO.
• Court: U.S. Court of Appeals — Second Circuit

273 F. 105

FIRST NAT. BANK OF LITCHFIELD v. PIPE & CONTRACTORS' SUPPLY CO.

No. 192.

United States Court of Appeals, Second Circuit.

April 20, 1921

William M. Foord, of Torrington, Conn., and Charles Welles Gross, of Hartford, Conn., for plaintiff in error.

Slade Slade & Slade, of New Haven, Conn. (Benjamin Slade, of New Haven, Conn., of counsel), for defendant in error.

The defendant below (hereinafter called the Bank) in July, 1918 owned and had in the vicinity of Litchfield, Conn., certain secondhand rails, pipe, engines, drills, etc., being machinery and appliances theretofore used in the construction or extension of a certain reservoir. The property was bulky and heavy. On July 25th the Bank agreed in writing with plaintiff below (hereinafter called Pipe Company) to sell this property to Pipe Company. The contract writing recites that Pipe Company, having paid $500 on account, agreed 'to pay the further sum of $1,475 for the (property aforesaid) when it is loaded on cars at the Litchfield station. This $1,975 includes the purchase price and moving (the property) to station.'

On August 15th the Bank wrote to Pipe Company that it expected the cars to be ready and the material on the ground ready to load on August 19th. The letter concluded with the following 'Kindly acknowledge receipt of this letter. I understood that you wanted to have some one here when the stuff was ready to load. ' The word 'here' meant Litchfield, Conn. To this letter Pipe Company returned no answer.

On August 22d the Bank wrote again, referring to the previous letter of August 15th, and saying: 'Much of the material is already loaded, and we are assured the balance will all be on cars to-morrow afternoon, except crusher and boiler, which are on the ground, and we feel sure it will be loaded on Saturday. Kindly give this your prompt attention, and favor us with your check for $1,475 as agreed. ' The 'Saturday' referred to was August 24th, and on that day all the property was loaded on cars at Litchfield station and ready to move.

On August 23d Pipe Company called up the Bank by telephone and requested that the goods be shipped with a sight draft attached to the bill of lading, and this the Bank refused. Thereupon Pipe Company's officer said over the telephone that he would come up in a few days, which he did not do. On August 31st the Bank wrote to Pipe Company stating that 'not having heard from you (and) in order to protect ourselves,' it had sold the property to somebody else, and with the letter returned the partial payment of $500, less demurrage charges on the loaded cars, of $86.

To this the Pipe Company replied on September 5th, professing surprise at the contents of the letter of August 31st, averring that it had always been 'ready, able, and willing' to carry out the bargain, and substantially threatening suit. Subsequently this action was brought, wherein a breach of contract is alleged, in that the Bank 'failed, neglected, and refused to deliver to (Pipe Company) the goods described in the list attached to' the complaint, viz: the property first above referred to.

Pipe Company is a New York corporation, and its office in New York City; the Bank transacts business at Litchfield, Conn.; jurisdiction depended on these facts. A jury was waived, the court found the foregoing facts, and held in opinion filed that 'it was unreasonable of the bank to act so quickly; (Pipe Company) was entitled to a reasonable time within which to make the balance payment, and it did not get it. ' Thereupon the court assessed as damages the difference between agreed price and market value, entered judgment accordingly, and the Bank took this writ.

Before WARD, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The contract at bar was made and was to be performed in Connecticut. It is therefore to be interpreted in the light of the Uniform Sales Act, which has been adopted in that state. The relevant sections of that statute are Nos. 41, 42, and 60 (Gen. Stat. Conn. Secs. 4707, 4708 and 4726).

The bargain between Bank and Pipe Company is plain and plainly expressed, viz. that Pipe Company was to pay the Bank $1,475 when the property was loaded on cars at Litchfield. The price...