Partola Mfg. Co. v. Gen. Chem. Co.

• Decision Date: 05 December 1922
• Parties: PARTOLA MFG. CO. v. GENERAL CHEMICAL CO.
• Court: New York Court of Appeals Court of Appeals

234 N.Y. 320

137 N.E. 603

PARTOLA MFG. CO.

v.GENERAL CHEMICAL CO.

Court of Appeals of New York.

Dec. 5, 1922.

Action by the Partola Manufacturing Company against the General Chemical Company. A judgment rendered by the trial justice in favor of defendant on plaintiff's cause of action, and in favor of the plaintiff on defendant's counterclaim, was reversed by the Appellate Division (197 App. Div. 697,189 N. Y. Supp. 437), which dismissed the defendant's counterclaim, and ordered a new trial on plaintiff's cause of action, and defendant appeals.

Judgment of the Appellate Division reversed, and that of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Arthur W. Mattson, of New York City, for appellant.

Sidney A. Clarkson, of Brooklyn, for respondent.

HOGAN, J.

This action was brought to recover damages for an alleged breach of contract. The trial justice before whom the case was tried made findings of fact and conclusions of law wherein he awarded to the defendant judgment on the plaintiff's cause of action, and to the plaintiff judgment against the defendant on the counterclaim set up in defendant's answer. Upon appeal, the Appellate Division, as appears by the order of reversal, unanimously decided that the findings of fact in favor of the defendant on the plaintiff's cause of action were not supported by evidence; that the counterclaim of the defendant was properly dismissed; that no appeal was taken by the defendant therefrom, and thereupon it ordered that the judgment appealed from so far as the same dismisses the complaint with costs be reversed upon the law and the facts and a new trial granted.

[1] The order of the Appellate Division did not reverse specifically any findings of fact made by the trial justice, or contain any new findings of fact; therefore, the reversal by the Appellate Division having been made upon the law, the only questions presented upon this appeal are: First, do the findings of fact sustain the conclusions of law; second, does the record disclose any evidence to sustain the findings of fact. Saltzsieder v. Saltzsieder, 219 N. Y. 523, 529,114 N. E. 856;Seneca Distributing Co. v. Fulton, 227 N. Y. 48, 124 N. E. 90. The facts found by the trial justice are in substance as follows:

Plaintiff and defendant are domestic corporations, existing under the laws of this state, each corporation maintaining an office in the city of New York. The defendant was the selling agent of the Nichols Copper Company, which company maintained a factory and warehouse on Long Island, city of New York. On or about the 10th of August, 1917, the plaintiff and defendant entered into an agreement in writing by which the defendant sold to the plaintiff and the plaintiff purchased and agreed to receive from the defendant 150 tons of 2,000 pounds each of Nichols Copper Company's Triangle brand of sulphate copper (blue vitriol) at $9 per 100 pounds, for delivery at an approximately uniform rate over the month of October, 1917, on terms of net cash in 30 days, less 1 per cent. for cash in ten days, in barrels, carload lots, f. o. b. New York. The contract provided:

‘Each month's shipment to be treated as a separate and independent contract, but if the buyer fails to fulfill terms of order, purchase or payment under this or other contracts, seller may defer further shipments until such default is made good and may at its option treat such default as final refusal to accept further shipments hereunder.’

Further:

‘The seller [defendant] was privileged to decline to make deliveries except for cash whenever the seller for any reason shall have doubt as to the buyer's responsibility and so advise the buyer, whereupon the buyer was permitted to satisfy the seller of his responsibility, and when the seller was so satisfied deliveries shall be made or received as per above terms.’

The goods were to be purchased for consumption, and not for resale.

October 6, 1917, plaintiff having been asked for a financial statement and failed to comply with the request, defendant notified plaintiff in writing that it would not execute the order or contract except on a basis of 10 days, 1 per cent., and limited credit of $3,500, the estimated value of one carload at a time, and--

‘If therefore you are willing to have the order executed with the understanding that you will pay for one carload before requisitioning the second one, or its equivalent in cash, we will be pleased to make shipments or deliveries on this basis.’

The plaintiff replied in writing on October 8th:

‘It will be to our satisfaction to have you execute order in the manner you outline, and agree to stipulation that deliveries are to be made on the basis of payment for each individual car before the following one is requisitioned.’

The trial justice found as matter of fact:

‘That on October 8, 1917, the credit terms of the said contract were revised so as to provide for cash 10 days (1 per cent.) buyer's option, and each individual carload was to be paid for before the next one was requisitioned.’ That 150 tons of sulphate of copper amounts to six to eight carloads.

Further the trial justice found, in effect, the following:

On October 9, 1917, defendant requested in writing of plaintiff instructions as to when and where to ship the orders. The plaintiff failed to requisition any goods or to give instructions for delivery of the same during October. The custom of the trade where goods are sold f. o. b. New York and the goods are to be delivered in New York is for the purchaser to give to the seller shippinginstructions. On November 10, 1917, plaintiff for the first time requested defendant to ship the goods to its place of business at 207 East Tenth street, or any downtown New York pier, the goods then being in the factory of the Nichols Copper Company, of which plaintiff had knowledge. It is not the custom or possible for a seller to deliver a carload of merchandise at a railroad pier or dock without being advised by the buyer that it has the space available to receive it, as no railroad or dock would receive it or permit its docks to be used. Defendant was at all times ready, able, and willing to deliver the merchandise as the contract required, and performed all its...