Pope v. Terre Haute Car & Manuf'g Co.

• Decision Date: 04 October 1887
• Citation: 107 N.Y. 61,13 N.E. 592
• Parties: POPE and another v. TERRE HAUTE CAR & MANUF'G CO.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 61

13 N.E. 592

POPE and another

v.TERRE HAUTE CAR & MANUF'G CO.

Court of Appeals of New York.

October 4, 1887.

Appeal from general term, supreme court, First department.

Action by plaintiffs, iron merchants, to recover against the defendant the difference between the contract price of 300 tons of pig-iron, alleged in the complaint to have been sold by plaintiffs to defendant on the second day of February, 1880, and the amount which, as alleged in the complaint, said iron realized on a sale thereof made by plaintiffs for the account and risk of defendant, after defendant had refused to receive or pay for the same, and, in addition, the expense of moving, storing, and protecting said iron, and for the resale of the same. The sale was made through Millard & Combs, of St. Louis, whom plaintiffs prove to have been their agents. The iron was offered to defendant by Millard & Combs, by a letter dated January 31, 1880, and, defendant having telegraphed its assent to purchase, the agents made and signed a note or memorandum of said sale in writing, usually known as a broker's sold note. This sold note was sent to defendant, and defendant accepted the same by its proper officer. The sold note and acceptance thereof were as follows:

‘ST. LOUIS, February 2, 1880.

‘Sold Terre Haute Car and Manufacturing Co., for account Pope and Bro., 300 tons No. 1 Calder, at $29 cash, in bond, New Orleans, subject to ocean risks.

‘Accepted.

T. H. C. & MFG. CO.

‘By J. B. HAGER, Pt.’

The complaint sets out that the iron was sold; that the iron was Scotch iron, and was to be imported from Scotland; that the plaintiffs duly ordered the shipment of the iron; that the same arrived safely in New Orleans, and was there placed in bond, and that thereupon plaintiffs notified defendant, and ‘tendered delivery of said iron, and demanded payment therefor according to the terms of said contract;’ that the defendant positively refused to receive said iron, or any part of it, and positively refused to pay for the same, or perform its said agreement or purchase, or any part of it; that thereupon the plaintiffs duly notified the defendant that they should sell said iron for its (defendant's) account and risk, and specified the time and place of such sale; that, not having received any payment or performance on the part of the defendant, plaintiffs did, on or about the twenty-sixth day of June, 1886, sell said iron for $15 per ton, in bond, New Orleans; that the total amount realized on the resale was $4,500; that that was the full value and best price that could be obtained for said iron, at that time; that the expenses of moving, storing, and protecting the iron, and for resale, were $443.80; that, after crediting defendant with the net proceeds of said iron, the defendant remained indebted in the sum of $4,649.80, and judgment was demanded for that sum, with interest from June 26, 1880.

Stephen O. Lockwood, for appellant.

Wm. W. Niles, for respondents.

ANDREWS, J.

The defendant's counsel, on the opening of the case, moved to dismiss the complaint, on the grounds (1) that it did not allege when the contract was to be performed; and (2) that it did not allege performance, or offer or tender of performance, within the time. The court denied the motion, and exception was taken. The plaintiffs did not offer to amend the complaint, and no amendment was made at any stage of the trial.

We think the motion should have been granted. There...