
    Royal Live Fish Company, Respondent, v. Central Fish Company, Appellant.
    First Department,
    December 29, 1911.
    Sale —• executory contract — live fish —when delivery optional.
    In the 1st paragraph of a contract of sale the vendor agreed to seH and deliver to the vendee promptly .on arrival .at Fulton Market, New York city, “all hve carp to be brought hythe party of the firstpart [the vendor] into the City of New York for aperiod of one year from the date hereof.” By the 2d paragraph the vendee agreed to purchase such fish and to pay for all fish delivered at specified times and prices. The 3d paragraph provided that the vendor should bring into the 'city of New York and deliver to the vendee not more than one carload unless reguested by the vendee to bring in more. The 4th paragraph gave the vendee the right once a month to limit the weekly shipment to a half carload. The 5th paragraph provided that “In case no shipment of live carp should be made in any week, three days’ notice shall be given to the party -of the second part [the vendee] that it may provide itself with fish from other sources.”
    NeZ<Z,.that the contract not only protected the vendor against its inability to obtain and deliver fish each week, hut obligated the vendor to deliver fish to the vendee only in the event that it saw fit to bring fish into the New York market.
    Appeal by the defendant, Central .Fish Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 9th day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank Harvey Field, for the appellant.
    
      Edward W. S. Johnston, for the respondent.
   Laughlin, J.:

This is an action to recover damages for a breach of a contract in writing made between the plaintiff, as party of the second part, and the .defendant, as party, of the first part, óñ the 1st day of August, 1907. The parties differ with respect to the construction of the contract, and upon the decision of this question of difference between them the plaintiff’s right of action depends. The plaintiff claims that the defendant obligated itself by the contract to furnish and deliver to plaintiff in the city of New York at least one carload of five fish per week during the period covered by the contract;- and the defendant contends that it was not obligated to -bring into the, city of New York or to deliver to the plaintiff any live fish in any'week, provided it gave plaintiff three days’ notice that it would not do so. The contract consists of seven paragraphs. By the 1st paragraph defendant agreed to sell and deliver to the plaintiff “promptly on arrival at Fulton Market, Manhattan Borough, City of New York, all live carp to be brought hy the party of the first part into the City of New York for a period of one year from the date hereof;” and not to sell or deliver any live fish so brought into the city of New York to any other individual or corporation, nor to permit or allow the use of its boats or cars in the transportation of live fish by any other individual or corporation during the period of one year, that being'the time the contract was to run, except as stated in paragraph 6, which provided that defendant should1 be at liberty, in the event therein specified, to sell a certain amount of live carp to certain individuals therein named. The 2d and 3d • paragraphs are as follows:

“ II. The party of the second part hereby agrees to purchase from the party of the first part all such live carp as herein stated, and to pay therefor twelve and one-half (12%) cents for each pound, for all fish delivered during the months of August, October, November, April, May, June and July, and fifteen (15c) cents for each pound for all such fish delivered during the months of September, December, January, February and March, and to make payment on each Monday or Saturday fully for all such fish taken prior to such Monday or Saturday.
“III. The party of the first part agrees to bring into the City of New York and deliver to the party of the second part each week not more than one carload of live fish unless requested to bring in more by the party of the second part; each carload shall not contain more than from 6,000 to 6,500 lbs. during the six summer months, namely: April, May, June, July, August and October, and not more than 8,000 to 8,500 lbs. during the other six months, said fish to be alive and in good condition, and every carp shall not exceed three pounds in weight, except one thousand (1,000) lbs. thereof in each carload; said fish to be brought and delivered on the days designated by the party of the second part, providing the party of the first part shall receive sufficient notice in case of a change in the days for delivery desired by the party of the second part, and in case the fish shall arrive later than the day designated by the party of the second part, then the party of the second part shall not be obligated to accept the same, provided always that the party of the first part shall have had sufficient notice as aforesaid.”

The 4th paragraph gave plaintiff the right once in each month to request the defendant “not to bring in more than one-half carload of five carp containing not more than 4,000 lbs. during one week, and in such event, upon notice to the party of the first part, the party of the second part shall not be obliged to take more than one-half carload as stated.”

The 5th paragraph is as follows:

“V. In case no shipment of live carp should be made in any week, three days’ notice shall be given to the party of the second part that it may provide itself with fish from other sources. ”

The contents of the 6th paragraph, so far as material, have already been -stated, and the 7th merely provides .for •deposit by the plaintiff of a sum of money as liquidated damages in the event of its failure to perform. The plaintiff waived any claim for damages with respect to the non-delivery of fish during the first month covered by the contract. In the -second month, namely, September, 1907, the defendant delivered three carloads of fish and it delivered two carloads in the month of May thereafter. With respect to the other weeks covered by the contract the evidence shows that defendant duly notified the plaintiff that it would not make deliveries of fish under the contract. The plaintiff has recovered the damages itsustained on the theory that it was the duty of the defendant to deliver at least one carload of fish each week, and that it could not relieve itself of that obligation by giving notice pursuant to the provisions of. paragraph 5.

On an appeal in a former action brought by plaintiff against defendant to recover the deposit for liquidated damages, the learned Appellate Term construed this contract as obligating the defendant to deliver at least one carload of five fish each week, and that it could not relieve itself of this obligation by giving notice ,-of its inability to deliver or that it would not deliver (Royal Live Wish Co. v. Central Wish Co., 123 N. Y. Supp. 213), and the learned trial justice followed this construction of the contract which we are of opinion is erroneous. We think that the defendant by the express terms of the contract not only protected itself against its inability to obtain and deliver fish, but it obligated itself to deliver fish to plaintiff only in the event that it .saw fit to bring fish into the New York market. This appears quite clearly from the provisions of the 1st and 2d paragraphs of the contract, the material parts of which have been stated. By the provisions of paragraph 5 of the contract the defendant obligated itself to give the plaintiff three days’ notice with respect to each week when it would not deliver fish to the end, as shown by the express terms of the contract, that plaintiff might provide itself with fish from other sources. Moreover, it appears that def endant was unable by ordinary means and methods which it. had theretofore employed in its business to obtain the requisite quantity of fish .for deliveries during the other weeks.

It follows that the judgment and order should he reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, costs to appellant to abide event.  