Manhattan Overseas Co., Inc. v. Camden County Beverage Co.

• Decision Date: 16 September 1940
• Docket Number: No. 14.,14.
• Citation: 125 N.J.L. 239,15 A.2d 217
• Parties: MANHATTAN OVERSEAS CO., Inc. v. CAMDEN COUNTY BEVERAGE CO.
• Court: New Jersey Supreme Court

15 A.2d 217

125 N.J.L. 239

MANHATTAN OVERSEAS CO., Inc.

v. CAMDEN COUNTY BEVERAGE CO.

No. 14.

Supreme Court of New Jersey.

Sept. 16, 1940.

Appeal from Circuit Court, Camden County.

Action for breach of contract by the Manhattan Overseas Company, Inc., against the Camden County Beverage Company. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Argued May term, 1940, before BROGAN, C. J., and PARKER and PERSKIE, JJ.

Walter S. Keown, of Camden (Wm. A. Early King, of Camden, of counsel), for appellant.

Casselman & Boulton, of Camden (Walter R. Carroll, of Camden, of counsel), for appellee.

PERSKIE, Justice.

This is an action at law for breach of contract. Plaintiff sued to recover the damages it sustained as a result of the alleged wrongful refusal on the part of the defendant fully to carry out its contract to purchase from plaintiff 25 bales of prime Polish hops, 1936 crop.

Plaintiff is a corporation of the State of New York with its principal place of business in the City of New York. It is engaged in the business of selling malt and hops.

Through the acknowledged effort of its commission broker, Peter Lust, while he was attending a convention of brewmasters in Philadelphia, plaintiff, on October 6, 1936, received, through the mail, at its New York office, a written order from the defendant for the purchase of "25 bales of prime Polish hops, 1936 crop", f. o. b. Philadelphia docks. The price was fixed at 58 cents a pound, 24 cents of which covered the import tax. Two of the 25 bales so ordered were to be shipped immediately. If the two bales so shipped were unsatisfactory, the remaining 23 bales were to be subject to cancellation. If satisfactory, the remaining 23 bales were to be shipped "at the disposal of Mr. Martin", an officer of defendant. The day after the receipt of this order (October 7, 1936) plaintiff, in writing, notified defendant of its acceptance thereof. It was agreed that plaintiff would draw a sight draft, with bill of lading attached, for each shipment made and that defendant would, in turn, pay each draft so drawn.

In pursuance of calls finally made for shipments (some were the result of much correspondence and many conferences between the parties), plaintiff made the following deliveries: October 11, 1936, 2 bales; January 13, 1937, 5 bales; February 23, 1937, 6 bales and October 11, 1937, 2 bales. Defendant accepted and paid for the 15 bales so delivered—the last payment being made on March 15, 1938. Notwithstanding the fact that under the custom of the brewing trade defendant was obliged to call for the entire shipment before October 1, 1937, defendant refused to call for the remaining 10 bales. That refusal, generally stated, was based on the claims that the hops of the last two shipments were of an inferior quality to those originally ordered and were not delivered from the same lot as the first two shipments. Defendant, therefore, took the position that it was no longer obliged either to call for the delivery of the remaining 10 bales or to pay for same.

Plaintiff's claim, on the other hand, was that it had fully complied with its contractual undertaking with defendant. Plaintiff had set aside the 10 bales for defendant and on June 18, 1938, drew a sight draft on defendant for the balance of the contract price. Defendant refused to honor it, and plaintiff, thereafter, on June 29, 1938, instituted this suit. Plaintiff abided an available market for the resale of the 10 bales of hops and on its appearance in August of 1939 it sold same for export to Antwerp, Belgium, at 2 1/2 cents a pound. Plaintiff then sought, as its amended complaint discloses, to recover from defendant the difference between the contract price (less the import tax) and the sale price.

The trial judge denied defendant's motions to nonsuit and to direct a verdict in its favor. On the merits of the issue involved he properly submitted the case to the jury with a comprehensive and fair charge, free from any reversible error. The jury returned a verdict of $2,093.53, plus $77.62 costs, in favor of the plaintiff. It is the propriety of the judgment based upon that verdict that is here challenged. Seventeen grounds are set down in support of that challenge. Some are abandoned; none is meritorious, and but few require discussion.

1. Defendant argues that the trial judge erred in refusing to grant its motions for a nonsuit and to direct a verdict in its favor. The argument is based upon the following grounds:

(A) Since plaintiff is a foreign corporation which concededly did not qualify to transact business in this State, R.S. 14:15-3, N.J.S.A. 14:15-3, it could not maintain this action because the contract in issue was made and completed in this State. R.S. 14:15-4, N.J.S.A. 14:15-4. This argument finds no support in the proofs. Assuming, without so deciding, that Peter Lust, plaintiff's broker, while attending the convention of brewmasters in Philadelphia, had the authority to make the contract for the order in issue (plaintiff's proof was that his contract for orders were subject to its approval), there is no proof that the contract was made and completed in New Jersey. The most favorable inference is that Lust obtained defendant's order in Philadelphia. When, as here, defendant's written order was signed in this State, transmitted to New York for acceptance, and there accepted by letter addressed to defendant in New Jersey, it is well settled that the contract was completed in New York and not in this State. Stevens-Davis Co. v. Peerless Service Laundry, 112 N.J. L. 304, 306, 170 A. 619. There is no merit to this branch of the argument.

(B) Defendant argues that the remaining and undelivered bales were not part of the lot from which the first and second shipments were made. Assuming that to be so, we fail to see its relevancy. Both lots unquestionably consisted of "prime Polish hops, 1936 crop." That was the kind of hops which were the subject matter of the contract between the parties irrespective as to the particular lot from which they chanced to come. That was the kind of hops which defendant approved and that was the kind of hops with which, under the conflicting proofs, it was open to the jury to find, as it apparently did, that plaintiff supplied defendant. There is no merit to this branch of the argument.

(C) Defendant argues that the plaintiff failed to sell the 10 remaining bales in the open market at the time of defendant's breach, in order to minimize the damages. This argument is based upon the claim that if defendant was obliged fully to carry out its undertaking with plaintiff before October 1, 1937, and failed to do...