Kelsea v. Ramsey & Gore Manuf'g Co.

• Decision Date: 19 June 1893
• Citation: 55 N.J.L. 320,26 A. 907
• Court: New Jersey Supreme Court
• Parties: KELSEA v. RAMSEY & GORE MANUF'G CO.

26 A. 907

55 N.J.L. 320

KELSEA

v. RAMSEY & GORE MANUF'G CO.

Courts of Errors and Appeals of New Jersey.

June 19, 1893.

(Syllabus by the Court.)

Error to circuit court, Passaic county; before Justice Dixon.

Action on a contract by Joseph U. Kelsea against the Ramsey & Gore Manufacturing Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Stevenson & Humphreys, for plaintiff in error.

John W. Griggs, for defendant in error.

VAN SYCKEL, J. It appears in the case that the defendants, who live in Paterson, N. J., made a valid contract in March, 1890, with the plain tiff, who is a bobbin manufacturer in New Hampshire, under which the latter was to manufacture 6,000 bobbins and send them to the defendants at Paterson. The following are the controlling facts in the case: The contract was made in March, 1890, and the plaintiff at once commenced to make the bobbins. On the 28th of March, 1890, the defendants wrote to one Wilkins, who had introduced them to the plaintiff, requesting him to tell the plaintiff to stop the order for the time being. It does not appear that the contents of this letter were communicated to the plaintiff. On the 29th of March, 1890, Wilkins replied to the letter of the defendants, asking them to explain why they wished to have the order canceled. The case shows no reply to this letter. On the 6th of June, 1890, the plain tiff shipped to defendants by railroad 1,400 bobbins, and on July 25, 1890, the balance of the 6,000 were shipped in same way. Both lots arrived safely in Paterson, and on the 14th of August, 1890, the defendants wrote to the plaintiff that they would not accept or pay for them. This suit was instituted to recover the price agreed upon when the order was given.

The first ground of defense is that the contract was made by Ramsey & Gore, and not by the Ramsey & Gore Manufacturing Company, and that, therefore, the motion to nonsuit on the trial should have prevailed. There is no merit in this contention. The letter of August 14, 1890, acknowledges that it is the contract of the company.

The second objection is that all the bobbins were not sent at once, and that the defendants were not bound, under the contract, to accept less than the whole number ordered. Conceding this to be so, the sufficient answer is that this objection was not taken on the trial below, and, when the letter notifying the plaintiff of the defendants' refusal to accept was written, the whole number of bobbins were in Paterson, of which fact the defendants had notice.

The third ground of defense is that the order to stop for a time terminated the plaintiff's right to fill the order, but to this I cannot agree. His right, under the contract, was to proceed at once with the manufacture of the goods, and to make delivery within a reasonable time. The defendants had no right to require him to stop temporarily, and could not, by such notice, change the plaintiff's rights under the contract.

The fourth ground relied upon by the defendants is the debatable one, and that is that there was no acceptance by the defendants, and therefore that the title did not pass to defendants, and the price consequently cannot be sued for; that the only remedy of the plaintiff is an action of damages for nonacceptance. If the question in this case was whether there was delivery and acceptance to take the case out of the statute of frauds, it would be clear that the plaintiff could not recover, for there was a refusal to accept. In this case the contract is conceded to be a valid contract in writing, and the question...