Kokomo Strawboard Co. v. Inman

• Decision Date: 31 May 1892
• Citation: 31 N.E. 248,134 N.Y. 92
• Parties: KOKOMO STRAWBOARD CO. v. INMAN et al.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 92

31 N.E. 248

KOKOMO STRAWBOARD CO.

v.INMAN et al.

Court of Appeals of New York,

Second Division.

May 31, 1892.

Appeal from supreme court, general term, second department.

Action by the Kokomo Strawboard Company against Horace Inman and another. From a judgment of the general term entered on an order affirming a judgment in favor of the plaintiff, entered on the report of a referee, defendants appeal. Affirmed.

Smith & White, for appellants.

Wm. Ford Upson, for respondent.

PARKER, J.

This action was brought to recover the value of a quantity of strawboard delivered to the defendants, pursuant to the terms of a contract which, by reason of an alleged failure of performance on their part, the plaintiff elected to treat as rescinded. The contract was as follows: ‘Kokomo, Ind., Nov. 9, 1887. Horace Inman, Esq., Amsterdam, N. Y.—Dear Sir: We propose to furnish you with 1,200 tons strawboard, at thirty-one dollars per f. o. b. cars here, your ninety days' acceptance from date of invoice. These boards to be shipped during the year 1888. This contract shall be considered binding, barring accidents, and take the place of all previous contracts with the Ohio Strawboard Co. All boards to be of No. 1 quality. Yours, truly, KOKOMO STRAWBOARD CO. M. SIEBERLING, Superintendent. Accepted: HORACE INMAN. P. S. All boards shipped this year to apply on above.’ Subsequently the plaintiff, pursuant to the terms of the contract, and at different dates, delivered to the defendants large quantities of strawboard; the defendants giving, and the plaintiff receiving, defendants' notes, payable in 90 days, in lieu of acceptances. The plaintiff alleges that, after it had delivered a considerable portion of the strawboard called for by the contract, the defendants were guilty of a breach of it, in that they failed to pay some of the notes at maturity, and neglected to give other notes or acceptances for about 88 tons of strawboard. The referee found ‘that the boards shipped by the plaintiff to the defendants were in substantial compliance, as to time and quality, with the terms of the contract.’ With reference to the alleged breach of the contract on the part of the defendants, he found, among other things, that a note maturing July 5, 1888, for $1,054, was protested for nonpayment, and has not since been paid; that a note for $658.75, which became due July 20, 1888, was also protested, and still remains unpaid. On the trial the plaintiff surrendered up notes aggregating $3,393.85 of principal, which had been received in lieu of acceptances. From the 5th to the 20th of June, inclusive, the plaintiff delivered to the defendants 87 tons of strawboard, for which the ‘defendants promised to give their notes as they had for other shipments, but have failed and neglected to do so, and have not paid for any portion of the same.’ It was also found that, at the urgent solicitation of the defendants, and under the belief that an amicable adjustment would be had, the plaintiff shipped one other ton of strawboard, making in all 88 tons received by the defendants, for which neither notes nor acceptances were given. The referee has fully supported his findings in an opinion which carefully considers the testimony before him, and they met with approval at the general term. His findings justified the conclusion reached that there was a breach of the contract on the part of the defendants, for not only had they failed to give acceptances as provided by the contract, or notes in lieu thereof, but had also neglected to make the necessary payments; the effect of the provision in the contract, that plaintiff would receive defendants' acceptances for 90 days from date of invoice, operating merely to extend the time of payment for that length of time. Iron Works v. Walker, 76 N. Y. 521. And default in payment constitutes a breach of contract. Barnes v. Denslow, (Sup.) 9 N. Y. Supp. 53;Winchell v. Scott, 114 N. Y. 640, 21 N. E. Rep. 1065; Flaherty v. Miner, 123 N. Y. 382–389, 25 N. E. Rep. 418. After the breach of the contract by the defendants, the plaintiff had the right to treat, as it did, the contract as terminated, and bring this action for the value of the strawboard furnished. Mead v. Degolyer, 16 Wend. 638;Ladue v. Seymour, 24 Wend. 60–62;Jones v. Judd, 4 N. Y....