Standard Fashion Co. v. Thomas
| Decision Date | 04 January 1923 |
| Parties | STANDARD FASHION CO. v. H. H. THOMAS |
| Court | Vermont Supreme Court |
November Term, 1922.
ACTION OF CONTRACT. Plea, the general denial, and a statement of the facts relied upon in defense. Trial by the St. Albans City Court, Nathan N. Post, J., upon an agreed statement of facts. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Reversed and judgment for defendant.
Judgment reversed and judgment for defendant to recover the sum of $ 126.56 with interest from November 26 1918, to the day of payment, and his costs.
G F. Ladd for the defendant.
Wallace B. Locklin for the plaintiff.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The record shows an agreement by the parties that this case should be tried and determined upon the agreed statement of facts and the exhibits made a part thereof. We understand the force of this to be that the trial and determination should be as warranted by the agreed facts, treating the pleadings as sufficient therefor, and we proceed accordingly.
The plaintiff contends that on the facts and exhibits so of record defendant is indebted to it in the aggregate sum of $ 198.25, for goods sold and delivered to him under the contract of agency, together with items of interest (on the standing credit) and charges for transportation, both also provided for by the contract, on the ground that he breached the contract in not paying the sum of $ 67.10, which plaintiff says had accumulated during a period of seven months, and because of such breaches he elected to terminate the contract, which resulted, plaintiff claims, in loss to defendant of the privilges of returning patterns for credit, full performance for the entire term, plaintiff further claims, being a condition precedent to the right so to return patterns at all. That the record shows items of indebtedness from him to plaintiff by the terms of the contract, amounting to the sum first named, defendant does not deny; but he says the record also shows that he is entitled to recover of plaintiff the sum of $ 306.76, it being 75% of the cost price of the patterns returned by him on October 24, 1918, and also the sum of $ 18.05, for discarded patterns previously returned to and accepted by plaintiff but for which the latter never delivered new patterns in exchange, the total amount so due him being $ 324.81, with interest; further claiming the right to have this sum set-off against any sum found due to plaintiff, and to have judgment for the amount remaining due after such set-off is made.
The contention that defendant's failure to pay in full for the several monthly shipments of goods on the days they became due were breaches that went to the essence of the contract and relieved the seller from further performance, cannot be sustained. It appears that $ 67.10 was the aggregate of the sums unpaid on such several shipments, covering a period of seven months. The shortage for any particular month, or months less than the whole number, does not appear, nor does it appear that there was such shortage in each and every month of the seven, nor of which months if less than all. It should seem that each months's shipment was in part at least paid when due; and it is not pointed out how an accumulation of partial defaults of that nature can be said to go to the essence of the contract and relieve the other party from further performance. The partial failure to pay on the day full payment became due, after the sale and delivery of the goods, was not a repudiation of the contract by defendant, nor did it afford the plaintiff any ground on which to justify future non-performance. Martindale v. Smith, 1 QB 389; Daley v. Peoples' Building, etc., Assn., 178 Mass. 13, 59 N.E. 452. No separate partial breach, if acted upon by the other party within a reasonable time, is shown to have been of sufficient importance to justify treating the whole contract as terminated and as being transformed into a right of action for damages. 3 Williston on Cont. Sec. 1290.
Although defendant gave no special orders for goods after April 29,...
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