Windmuller v. Pope

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM.
Citation14 N.E. 436,107 N.Y. 674
Decision Date06 December 1887
PartiesWINDMULLER et al. v. POPE et al.

107 N.Y. 674
14 N.E. 436

WINDMULLER et al.
v.
POPE et al.1

Court of Appeals of New York.

December 6, 1887.


Appeal from general term, supreme court, First department.

Action brought by Louis Windmuller and Alfred Roelker against Thomas J. Pope and James E. Pope to recover damages from defendants for the breach of a written contract for the sale and delivery on the part of plaintiffs of about 1,200 tons of old iron Vignol rails, to be shipped from Europe. The cause was tried before LARREMORE, J., and a jury, and upon verdict for plaintiffs judgment rendered for $19,439, the amount of principal and costs. On appeal, the general term affirmed the judgment against defendants, and they bring the case to the court of appeals.


[107 N.Y. 676]

[14 N.E. 437]

Carlisle Norwood, Jr., and W. W. Niles, for appellants.

Bernard Roelker and Cephas Brainerd, for respondents.


PER CURIAM.

[107 N.Y. 675]We think no error is presented upon the record which requires a reversal of the judgment. The defendants having on the twelfth of June, 1880, notified the plaintiffs that they would not receive the iron rails, or pay for them, and having informed them on the next day that if they brought the iron to New York they would do so at their own peril, and advised them that they had better stop at once attempting to carry out the contract, so as to make the loss as small as possible, the plaintiffs were justified in treating the contract as broken by the defendants at that time, and were entitled to bring the action immediately for the breach, without tendering the delivery of the iron, or awaiting the expiration of the period of performance fixed by the contract; nor could the defendants retract their renunciation of the contract after the plaintiffs had acted upon it, and by a sale of the iron to other parties change their position. Dillon v. Anderson, 43 N. Y. 231;Howard v. Daly, 61 N. Y. 362;Ferris v. Spooner, 102 N. Y. 12, 5 N. E. Rep. 773; Hochster v. De La Tour, 2 El. & Bl. 678; Cort v. Railway Co., 17 Adol. & E. (N. S.) 127; Crabtree v. Messersmith, 19 Iowa, 179; Benj. Sales, §§ 567, 568.

The ordinary rule of damages in an action by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them, is the difference between the contract price and the market value of the property at the time and place of delivery. Dana v. Fiedler, 12 N. Y. 40;Dustan v. McAndrew, 44 N. Y. 72;Cahen v. Platt, 69 N. Y. 348. The just application of this rule to the...

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24 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P. 32; Windmuller v. Pope, 14 N.E. 436; Central Trust Co. v. Chicago Assoc., 240 U.S. 581; Collins v. Snow, 106 N.E. 148.) Full payment was a condition precedent to respondent's ri......
  • O'Neill v. Supreme Council Am. Legion of Honor
    • United States
    • United States State Supreme Court (New Jersey)
    • February 23, 1904
    ...1 Am. Rep. 516; Howard v. Daly, 61 N. Y. 362, 374, 19 Am. Rep. 285; Ferris v. Spooner, 102 N. Y. 10, 5 N. E. 773; Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436; Nichols v. Scranton Steel Co., 137 N. Y. 471, 487, 33 N. E. 501; Kadish v. Young, 108 Ill. 170, 177, 43 Am. Rep. 548; Roebling's......
  • Kelly v. Sec. Mut. Life Ins. Co.,
    • United States
    • New York Court of Appeals
    • October 2, 1906
    ...516); for personal services (Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285) and for the manufacture or sale of goods (Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436;Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561). At least we have not extended it to mutual life insurance polici......
  • In re Asia Global Crossing, Ltd., No. 02-15749 (SMB).
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • December 13, 2007
    ...constituted a repudiation, and the plaintiff-seller was relieved of the duty to make future deliveries); Windmuller v. Page 499 Pope, 107 N.Y. 674, 14 N.E. 436, 437 American List also cited section 978 of Corbin on Contracts for the proposition that willingness and ability to perform need n......
  • Request a trial to view additional results
24 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P. 32; Windmuller v. Pope, 14 N.E. 436; Central Trust Co. v. Chicago Assoc., 240 U.S. 581; Collins v. Snow, 106 N.E. 148.) Full payment was a condition precedent to respondent's ri......
  • O'Neill v. Supreme Council Am. Legion of Honor
    • United States
    • United States State Supreme Court (New Jersey)
    • February 23, 1904
    ...1 Am. Rep. 516; Howard v. Daly, 61 N. Y. 362, 374, 19 Am. Rep. 285; Ferris v. Spooner, 102 N. Y. 10, 5 N. E. 773; Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436; Nichols v. Scranton Steel Co., 137 N. Y. 471, 487, 33 N. E. 501; Kadish v. Young, 108 Ill. 170, 177, 43 Am. Rep. 548; Roebling's......
  • Kelly v. Sec. Mut. Life Ins. Co.,
    • United States
    • New York Court of Appeals
    • October 2, 1906
    ...516); for personal services (Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285) and for the manufacture or sale of goods (Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436;Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561). At least we have not extended it to mutual life insurance polici......
  • In re Asia Global Crossing, Ltd., No. 02-15749 (SMB).
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • December 13, 2007
    ...constituted a repudiation, and the plaintiff-seller was relieved of the duty to make future deliveries); Windmuller v. Page 499 Pope, 107 N.Y. 674, 14 N.E. 436, 437 American List also cited section 978 of Corbin on Contracts for the proposition that willingness and ability to perform need n......
  • Request a trial to view additional results

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