T.W. Oil, Inc. v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 15 December 1982
• Citation: 443 N.E.2d 932,57 N.Y.2d 574,457 N.Y.S.2d 458
• Parties: , 443 N.E.2d 932, 36 A.L.R.4th 533, 35 UCC Rep.Serv. 12 T.W. OIL, INC., Formerly Known as Joc Oil USA, Inc., Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 458

457 N.Y.S.2d 458

57 N.Y.2d 574, 443 N.E.2d 932, 36

A.L.R.4th 533,

35 UCC Rep.Serv. 12

T.W. OIL, INC., Formerly Known as Joc Oil USA, Inc., Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant.

Court of Appeals of New York.

Dec. 15, 1982.

Barry S. Goldstein, Ernest J. Williams, Sheila Solomon Rosenrauch, New York City, and Patricia M. Fruehling, for appellant.

David L. Maloof, Francis J. McCaffrey, James J. Ruddy and Daniel G. McDermott, New York City, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

In the first case to wend its way through our appellate courts on this question, we are asked, in the main, to decide whether a seller who, acting in good faith and without knowledge of any defect, tenders nonconforming goods to a buyer who properly rejects them, may avail itself of the cure provision of subdivision (2) of section 2-508 of the Uniform Commercial Code. We hold that, if seasonable notice be given, such a seller may offer to cure the defect within a reasonable period beyond the time when the contract was to be performed so long as it has acted in good faith and with a reasonable expectation that the original goods would be acceptable to the buyer.

The factual background against which we decide this appeal is based on either undisputed proof or express findings at Trial Term. In January, 1974, midst the fuel shortage produced by the oil embargo, the plaintiff (then known as Joc Oil USA, Inc.) purchased a cargo of fuel oil whose sulfur content was represented to it as no greater than 1%. While the oil was still at sea en route to the United States in the tanker M T Khamsin, plaintiff received a certificate from the foreign refinery at which it had been processed informing it that the sulfur content in fact was .52%. Thereafter, on January 24, the plaintiff entered into a written contract with the defendant (Con Ed) for the sale of this oil. The agreement was for delivery to take place between January 24 and January 30, payment being subject to a named independent testing agency's confirmation of quality and quantity. The contract, following a trade custom to round off specifications of sulfur content at, for instance, 1%, .5% or .3%, described that of the Khamsin oil as .5%. ¹ In the course of the negotiations, the plaintiff learned that Con Ed was then authorized to buy and burn oil with a sulfur content of up to 1% and would even mix oils containing more and less to maintain that figure.

When the vessel arrived, on January 25, its cargo was discharged into Con Ed storage tanks in Bayonne, N Jersey. ² In due course, the independent testing people reported a sulfur content of .92%. On this basis, acting within a time frame whose reasonableness is not in question, on February 14 Con Ed rejected the shipment. Prompt negotiations to adjust the price failed; by February 20, plaintiff had offered a price reduction roughly responsive to the difference in sulfur reading, but Con Ed, though it could use the oil, rejected this proposition out of hand. It was insistent on paying no more than the latest prevailing price, which, in the volatile market that then existed, was some 25% below the level which prevailed when it agreed to buy the oil.

The very next day, February 21, plaintiff offered to cure the defect with a substitute shipment of conforming oil scheduled to arrive on the S.S. Appollonian Victory on February 28. Nevertheless, on February 22, the very day after the cure was proffered, Con Ed, adamant in its intention to avail itself of the intervening drop in prices, summarily rejected this proposal too. The two cargos were subsequently sold to third parties at the best price obtainable, first that of the Appollonian and, sometime later, after extraction from the tanks had been accomplished, that of the Khamsin. ³

There ensued this action for breach of contract, ⁴ which, after a somewhat unconventional trial course, resulted in a nonjury decision for the plaintiff in the sum of $1,385,512.83, essentially the difference between the original contract price of $3,360,667.14 and the amount received by the plaintiff by way of resale of the Khamsin oil at what the court found as a matter of fact was a negotiat price which, under all the circumstances, ⁵ was reasonably procured in the open market. To arrive at this result, the Trial Judge, while ruling against other liability theories advanced by the plaintiff, which, in particular, included one charging the defendant with having failed to act in good faith in the negotiations for a price adjustment on the Khamsin oil (Uniform Commercial Code, § 1-203), decided as a matter of law that subdivision (2) of section 2-508 of the Uniform Commercial Code was available to the plaintiff even if it had no prior knowledge of the nonconformity. Finding that in fact plaintiff had no such belief at the time of the delivery, that what turned out to be a .92% sulfur content was "within the range of contemplation of reasonable acceptability" to Con. Ed., and that seasonable notice of an intention to cure was given, the court went on to hold that plaintiff's "reasonable and timely offer to cure" was improperly rejected ( sub nom. Joc Oil USA v. Consolidated Edison Co. of N.Y., 107 Misc.2d 376, 390, 434 N.Y.S.2d 623 [Shanley N. Egeth, J.] ). The Appellate Division, 84 A.D.2d 970, 447 N.Y.S.2d 572, having unanimously affirmed the judgment entered on this decision, the case is now here by our leave (CPLR 5602, subd. [a], par. 1, cl. [i] ).

In support of its quest for reversal, the defendant now asserts that the trial court erred (a) in ruling that the verdict on a special question submitted for determination by a jury was irrelevant to the decision of this case, (b) in failing to interpret subdivision (2) of section 2-508 of the Uniform Commercial Code to limit the availability of the right to cure after date of performance to cases in which the seller knowingly made a nonconforming tender and (c) in calculating damages on the basis of the resale of the nonconforming cargo rather than of the substitute offered to replace it. For the reasons which follow, we find all three unacceptable.

I

Initially, we deal with the threshold contention over the special verdict, which, though not complex, if erroneously decided below, would require reversal. A product of an ad hoc pretrial arrangement peculiar to this case, on analysi however, it presents but another example of a decision by opposing parties in a civil case to chart their own litigation course, to which, unless public policy is affronted, the law ordinarily raises no obstacle (Martin v. City of Cohoes, 37 N.Y.2d 162, 165-166, 371 N.Y.S.2d 687, 332 N.E.2d 867). Here, by stipulation, the parties, who, of course, were free to waive a jury entirely, in effect relegated the special verdict, which otherwise could not be set aside merely because the court disagreed with it (Vaughn-Rees v. Connolly, 30 A.D.2d 785, 291 N.Y.S.2d 705, affd. 27 N.Y.2d 901, 317 N.Y.S.2d 371, 265 N.E.2d 779), to a position tantamount to that of an advisory verdict (e.g., McKenna v. Meehan, 248 N.Y. 206, 214, 161 N.E. 472).

This came about when the parties, finding themselves in accord on most of the facts, mutually agreed that the jury only be called upon to answer four stipulated questions, and then, by the close of the testimony, went on to further limit the jury's scope by an understanding, as they read it into the record, "that in applying the law to the facts for an ultimate determination that the Court will consider the stipulated set of facts which have been presented in writing by counsel, the resolution of the specific questions by the jury as submitted to the jury, and counsel further stipulate that, if any other necessary fact is required to enable the proper application of the law to the facts of this case and such fact is not covered by either the stipulation of facts of the parties or the finding of the jury, and if further there is testimony in the record from which a finding could be made or in testimony or evidence of any kind from which a finding of such necessary fact can be made, the parties do hereby authorize the Court nonjury to make such determination as a prerequisite to the application of the law".

That the court so understood its responsibility is clear from the language it employed in disregarding the verdict. For the only one of the four questions of which the appellant complains, ⁶ reads as follows: "Q. Did Con Edison act reasonably in rejecting the substitute shipment which was offered by Joc Oil USA on February 21, 1974, for a scheduled February 28, 1974 arrival?" "Jury--'Yes' ". And t court's words, in ruling, were: "The parties formed this and the other submission to the jury pursuant to their understanding that the factual verdicts would be afforded any appropriate significance when thereafter the court applied the applicable law. It was clearly understood and agreed that their mutually framed narrow factual questions would be submitted to the jury without any reference to applicable provisions or requirements of the Uniform Commercial Code, and that the court would thereafter apply the law as mandated by the code to all of the facts of the case. In accordance with this agreed procedure no instruction or information was given to the jury as to the rights or duties of the parties under the statute * * * The jury finding of reasonable rejection can have no meaning without the necessary absent statutory frame of reference" (107 Misc.2d, at p. 385, 434 N.Y.S.2d 623 [emphasis added] ). The code reference in this statement, as made clear in the extensive writing in which the Trial Judge handed down his decision, was to subdivision (2) of section 2-508. As explained in part II of this opinion, while a buyer's rejection of a nonconforming tender provides the occasion for a seller's invocation of the statute, the buyer's rejection is not conditioned by any requirement that it have...