New York Trust Co. v. Island Oil & Transport Corporation

• Decision Date: 24 June 1929
• Docket Number: No. 273.,273.
• Citation: New York Trust Co. v. Island Oil & Transport Corporation, 34 F.2d 653 (2nd Cir. 1929)
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NEW YORK TRUST CO. v. ISLAND OIL & TRANSPORT CORPORATION et al. Ex parte AMERICAN TRUST CO.

34 F.2d 653 (1929)

NEW YORK TRUST CO. v. ISLAND OIL & TRANSPORT CORPORATION et al. Ex parte AMERICAN TRUST CO.

No. 273.

Circuit Court of Appeals, Second Circuit.

June 24, 1929.

Paul B. Barringer, Jr., of New York City, for mortgagee.

Saul J. Lance, of New York City (Francis L. Kohlman, of New York City, on the brief), for receivers.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

We do not find it necessary to decide whether the appointment of the seller's receivers and the subsequent correspondence constituted an anticipatory breach of the contract. Even if they did, the damages are not to be computed in disregard of what took place between then and the filing of the claim, or for that matter — this being in equity — up to the entry of the decree. It is, indeed, one of the consequences of the doctrine of anticipatory breach that, if damages are assessed before the time of performance has expired, the court must take the chance of forecasting the future as best it can. That does not mean that it will ignore what has happened, when the period of performance has already expired. Damages never do more than restore the injured party to the position he would have been in, had the promisor performed; this is not a rule peculiar to anticipatory breach, though that is an instance. Hence it is always an answer, in that or other similar situations, to show that, had the contract continued, the promisee would not have been entitled to the performance, though he was apparently so entitled when the promisor disabled himself or repudiated. Gray v. Smith, 83 F. 824 (C. C. A. 9); Winston v. Brown, 247 F. 948 (C. C. A. 5); Texas Co. v. Pensacola Maritime Corporation, 279 F. 19, 24 A. L. R. 1336 (C. C. A. 5); Gerli v. Poidebard Co., 57 N. J. Law, 432, 31 A. 401, 30 L. R. A. 61, 51 Am. St. Rep. 611; Williston on Contracts, § 884.

In the case at bar the contract was personal to the buyer; he was not to assign it, nor were there to be assignments by operation of law. This was a valid provision, and really did no more than in earlier times the law itself effected. Burck v. Taylor, 152 U. S. 634, 14 S. Ct. 696, 38 L. Ed. 578; Tabler v. Sheffield Land, Iron & Coal Co., 79 Ala. 377, 58 Am. Rep. 593; Mueller v. Northwestern University, 195 Ill. 236, 63 N. E. 110, 88 Am. St. Rep. 194; Zetterlund v. Texas Land & Cattle Co., 55 Neb. 355, 75 N. W. 860; Wakefield v. Amer. Surety Co., 209 Mass. 173, 95 N. E. 350. The trustee in bankruptcy could not therefore demand the oil, not because of any defect in his title under the statute, but because the contract excluded him by its terms. Nor could the buyer have done so, at least...