
    Aaron Branower and Alexander Branower, Respondents, v. Independent Match Company, Appellant.
    
      Contract for the sale of a manufactured article — construed with reference to the time when the vendee was obliged to order the goods.
    
    A contract made between the firm of Branower & Son and the Independent Match Company provided as follows: “The Independent Match Company agrees to sell and Branower & Son agrees to take twelve carloads (1,600 gross each) matches to be delivered on the average of two cars per month. If a car is wanted oftener than each two weeks Branower & Son to give the Match Company reasonable notice. If at the end of six months from this date, Branower & Son shall not have taken twelve carloads, they shall have three months additional time in which to take them.”
    
      Held, that Branower & Son were not obliged to order two carloads of matches each month, but that they would perform the obligation imposed upon them by the contract if they ordered the twelve carloads of matches at any time within nine months from the date of the contract.
    Appeal by the defendant, the Independent Match Company, from a final judgment of the Supreme .Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of October, 1902, upon the verdict of a jury.
    
      James C. Van Siclen, for the appellant.
    
      Max D. Steuer, for the respondents.
   Ingraham, J.:

The complaint alleges the making of a contract by which the defendant agreed to sell and deliver to the plaintiffs twelve carloads of matches between the 5th day of December, 1898, and the 5th day of September, 1899, the plaintiffs to have the right to demand the delivery of the whole twelve carloads within six months from the date of the contract on an average of two cars per month; that the defendant had delivered four carloads of matches under the contract, but had failed to deliver the balance ; that the plaintiffs have demanded of the defendant that it deliver the matches referred to in said contract, but that the defendant has refused to comply with the demand of the plaintiffs, and by reason of such failure the plaintiffs have sustained damage in the sum of $3,560, the difference between the contract price and the market value of the said matches. The contract provided that “ The Independent Match Company agrees to sell and Branower & Son agrees to take twelve carloads (1,600 gross each) matches to be delivered on the average of two cars per month. If a car is wanted oftener than each two weeks Branower & Son to give the Match Company reasonable notice. If at the end of six months from this date, Branower & Son shall not have taken twelve carloads, they shall have three months additional time in which to take them.” Then follows the price to be paid for the matches. The answer of the defendant denied the allegations of the complaint, except the incorporation of the defendant and the making of the contract therein referred to. It appeared from the plaintiffs’ evidence that after making the contract the defendant delivered four cars of matches, one in December, 1898, two in January, 1899, and one in March, 1899 ; that there then resulted a correspondence between the parties. A letter, which from the record appears to be dated March 5, 1898, but which is evidently a mistake for 1899, from the plaintiffs to the defendant was introduced, in which complaint was made as to the quality of matches shipped by the last carload, suggesting a change in the brand on the boxes and wrappers, and stating, the car which you have already made up for us will try and take next week, and will do all we can to sell it. Will let you know in a few days when to ship it.” The defendant wrote on March 7, 1899, in reply : We are sorry to learn of the bad matches but are ready to believe what you say in regard to them, as we discovered the fault in our dipping man. * * * We want to do everything possible to please you and help you increase your sales, and we thank you for giving us the information and suggestions. We will act upon your advice and get up another brand for the Lucky. * * * The carload we have made up for you are wrapped in the heavier paper and the boxes are well filled. Let us know when we shall ship them.” There is no answer to this letter in the record, but on April 5, 1899, the defendant wrote to the plaintiffs asking if they were willing to cancel the contract, to which the plaintiffs replied, on April 9, 1899, that they wanted to deal with the defendant, but that in consequence of the bad quality of matches the last car sold very slow; that as soon as the plaintiffs could get rid of it they would send an order for the new brand, . “ and if same will be satisfactory will certainly use it right along.” On May 31, 1899, the defendant wrote to plaintiffs complaining that they had not lived up to their contract, and asking what guaranty the defendant had that plaintiffs would take eight carloads within the next three months. On June 1,1899, the plaintiffs replied saying : “ In reply to yours of the 31st would say that we never thought about going back on our contract with you * * * nor do we think so now. You will remember that when once asked by you whether we are willing to cancel our agreement—we wrote you to the contrary; that we are now in the market for matches and if the matches will be right will take them as per agreement — more yet. * * * You can ship one car, 1600 gross, 1899 at once—-to-morrow or Saturday, and the following every 2 weeks as per agreement.” This was followed by a telegram from the plaintiffs to the defendant on June 4, 1899, as follows: “ When can you ship, or you would not ship at all, answer required.” There is no answer to this letter or telegram in evidence, but in a letter dated June 7,1899, the plaintiffs, after discussing the controversy, said : “Ye are paying you your price for the goods. We will sure take the quantity of matches you desire to sell. * * * What we have to say in the conclusion is this, that we hope to hear from you this week that you will give us the 8 cars of matches due to us upon the agreement and that we shall send you at once our order with exact date when to ship.” No answer to this letter appears, but on June 22,1899, the defendant telegraphed the plaintiffs: “ Yours of the 21st at hand. We cannot give you an answer yet. We have had to shut down our factory for several days on account of the excessive heat.” This seems to have been the end of the correspondence, and the defendant made no further effort to comply with the contract. It further appeared that what was called the “ trust ” bought out the defendant company in June, 1899. One of the plaintiffs testified that they ordered matches between May tenth and May twenty-ninth and wrote to the defendant asking for the goods repeatedly, but that no goods were shipped in response to these orders. For the defense the manager of the defendant testified that he called upon the plaintiffs for the purpose of arranging for shipments of the goods; that the plaintiffs found fault with the goods and claimed that they were defective and .declined to take any more of them ; that they declined to take any more matches at all; that after March seventeenth, when the last carload was shipped, the defendant never received any orders from the plaintiffs until June first; that the defendant continued manufacturing matches until December, 1899, and did not advance the price of matches between May 28 and September 5, 1899 ; that the defendant did not ship any matches to the plaintiffs pursuant to the letter of June first which said, “ You can ship one car 1600 gross, 1899 at once — to-morrow or Saturday, and the following every 2 weeks as per agreement.”

At the end of the plaintiffs’ case and at the end of the whole case the defendant moved to dismiss the complaint. This motion was denied and the court submitted to the jury the question as to whether there was a breach of contract by the defendant, calling attention to the letter of June first, and stating: “Evidence has been given on the part of the defendant tending to show that the plaintiffs had never ordered any matches after the shipment of March 17. * * * If it is true that, the plaintiffs never ordered any matches after the shipment of March I7tli, then of course there has been no breach of this contract on the part of the defendant and the plaintiffs cannot recover. If you are satisfied after consideration of all the evidence in this case that the plaintiffs did order a shipment of the remaining eight cars within a period of nine months from the 5th day of December, 1898, and the defendant refused and failed to deliver those matches to the plaintiffs, then there was a breach of this contract and the plaintiffs would be entitled to such damages as they have sustained.” The defendant excepted to that part of the charge in which the court said : “ The plaintiffs had nine months in which to perform under the contract; ” and also to the further charge that “ if the jury are satisfied that the plaintiffs ordered twelve cars within nine months after the execution of the contract they are entitled to recover.” After the jury retired they asked the court the following question: “ The question arises in the case of Branower vs. Independent Match Co. as to whether the plaintiffs had the privilege of ordering goods as desired from the date that the contract went into effect until date of its termination, or was it incumbent upon the plaintiffs to order goods on the specific basis of two cars per month ? ” In reply the court said.: “ Plaintiffs were not bound to order two carloads of matches per month. They had the right to order the matches at any time during the continuance of the contract, to wit, nine months from the fifth day of December, 1899, giving the defendant, of course, a reasonable time in which to fill the order,” to which the defendant excepted.

There can be no doubt but that the finding of the jury that there was a breach of the contract by the defendant was justified. On June 1, 1899, the plaintiffs distinctly ordered one carload of matches to be shipped within the two following days and a carload within each of the two following weeks, and the defendant failed to comply with this demand. There was nothing in the prior correspondence that justified the defendant in treating the contract as broken or abrogated by the plaintiffs. There had been complaint by the plaintiffs of the bad quality of matches shipped under the contract, which seems tó have been conceded by the defendant. The defendant then endeavored to obtain the consent of the plaintiffs to abrogate the contract, which the plaintiffs refused to give, and insisted upon its performance. Up to this time there had been no claim made by the defendant that the contract had been abrogated by the delay of the plaintiffs in ordering the matches. While the parties contemplated that two carloads of the matches were to be delivered each month, it was expressly provided that “ if at the end of six months from this date, Branower & Son shall not have taken twelve carloads, they shall have three months additional time in which to take them.” The six months from the date of this contract was the 5th day of J une, 1899, and the plaintiffs had three months from that date to take the eight carloads. On the 1st of June, 1899, the plaintiffs ordered one car to be sent within the following two days and one car for every two following weeks. There were then undelivered under the contract eight carloads of matches which, if the carload then ordered had been delivered, would leave seven carloads. The subsequent delivery of one carload each two weeks would take fourteen weeks from June first, which was but little over three months from that date. To this the defendant made no response, and failed to deliver any of the matches so ordered. This was a breach of the contract by the defendant, for which plaintiffs were entitled to recover. The instruction to the jury that the defendant had the right to order the eight cars within nine months from the date of the contract was a correct construction of the contract. We also think that the court applied the correct rule as to the damages to which the plaintiffs were entitled. The damages as claimed in the complaint were $3,560. The amount found by the jury was $4,864. There was no motion to amend the complaint and the defendant moved to set aside the verdict as excessive. We think that motion should have been granted, unless the plaintiffs were willing to consent to a reduction of the verdict to the amount claimed in the complaint. The defendant having appealed from the order denying that motion, the order should be reversed and a new trial granted unless plaintiffs stipulate to reduce the judgment as entered to the sum of $3,629.12. If the plaintiffs shall so stipulate, the judgment as so reduced and the order are affirmed, without costs.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiffs stipulate to reduce judgment as entered to the sum of $3,629.12. If the plaintiffs so stipulate, judgment as so reduced and order affirmed, without costs. 
      
      
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