Mawhinney v. Millbrook Woolen Mills, Inc.
Decision Date | 21 November 1922 |
Citation | 234 N.Y. 244,137 N.E. 318 |
Parties | MAWHINNEY v. MILLBROOK WOOLEN MILLS, Inc. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by George S. Mawhinney against the Millbrook Woolen Mills, Inc. A judgment for defendant, entered on a verdict directed by the court, was affirmed by the Appellate Division (201 App. Div. 589,194 N. Y. Supp. 780), and plaintiff appeals.
Reversed, and new trial granted.
Appeal from Supreme Court, Appellate Division, Second Department.
Thomas G. Prioleau, of New York City, for appellant.
Roderic Wellman and Francis L. Wellman, both of New York City, for respondent.
The case comes up on appeal after a second trial of the action granted by this court. 231 N. Y. 290, 132 N. E. 93. The action is to recover damages for breach of contract to manufacture and sell certain woolens. The contract was dated February 9, 1917. The subject-matter of the contract was 100 pieces of woolens. The agreed price was $1.75 a yead. Deliveries were to be made during the months of May, June, and July in the year 1917. Defendant de livered only 10 pieces, for which plaintiff paid.
The question before this court on the former appeal was as to the sufficiency of certain defenses, based on the precedence of certain government contracts made after the date of the contract in suit. It had been held below that, although under government orders and contracts, beginning May 11, 1917, defendant's looms had been utilized and performance of plaintiff's contract had been thereby delayed, the character of the government contracts differed not from ordinary civil contracts, and that until November 24, 1917, when a formal order was made under the provisions of the National Defense Act (39 Stat. 166), the contracts and the acts of the government officials in demanding performance of such contracts constituted no defense for failure to preform plaintiff's contract. The documentary and other evidence of such contracts is set forth in the opinion, to which reference is hereby made.
This court, however, held that, during the emergency of the war with Germany, when the government made contracts for uniform cloth, and requested through its proper army officers that delivery be made as speedily as possible, and that precedence be given over all civilian business, such orders came within the spirit and meaning of the National Defense Act, § 120 (U. S. Comp. St. § 3115g), making compliance with all such precedence orders obligatory on a contractor with the government, so that the contractor to furnish uniform cloth, who complied with the orders and neglected civilian business, is not liable for breach of contract to civilian customers. It also held that:
The court did not hold, nor was it necessary for its decision to hold, that the undisputed facts showed that the work on the government contracts actually did wholly delay or prevent further preformance of plaintiff's contract prior to and until November 24, 1917, when the government requisitioned all cloth in defendant's possession and in process of manufacture, and required defendant to utilize all its machinery exclusively for the performance of the government contracts.
On the second trial judgment in favor of the defendant was directed by the court. The Appellate Division, by a divided court, affirmed the judgment of the court below, saying that:
201 App. Div. 589,194 N. Y. Supp. 780.
The letters of August 24, October 4, and October 17, 1917, above referred to, are mere requests to rush balance of overcoatings due, to advise when delivery will be made, and to give information in regard to delivery. Far from indicating an intention to rescind the plaintiff's contract for delay, they plainly indicate an intention to enforce the contract and to demand delivery of the goods contracted for. Defendant did not formally rescind the contract until December 1, 1917, when it notified plaintiff that the United States government had commandeered all material to the exclusion of private orders.
Taylor v. Goelet, supra, held merely (208 N. Y. 258, 101 N. E. 868, Ann....
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...if it ever existed, had been definitively renounced. What was left was a claim for the damages incurred. Mawhinney v. Millbrook Woolen Mills, 234 N. Y. 244, 137 N. E. 318;Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324, 88 N. E. 395. The contractors did not suggest that they had anyt......
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...the goods although he might have refused to accept them because of a defect therein or delay in delivery. Mawhinney v. Millbrook Woolen Mills, 1922, 234 N.Y. 244, 137 N.E. 318; Symons v. Greenwood, Atkinson, Armstrong Co., 1922, 218 Misc. 621, 188 N.W. 366; Whitaker-Glessner Co. v. Strick, ......
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