
    GEORGE ACKERMAN, Plaintiff, v. JOHN D. VOORHIES, Defendant.
    Contbact to manufacture and deliver articles.
    
    1. Rescission of by notice.
    
    
      a. A notice to the manufacturer by the employer, that if the articles were not delivered by a certain limited time, he would make a contract with other parties, operates, after the expiration of the limited time, as a rescission by the defendant of the contract, so far as to amount to a refusal to accept a delivery under it.
    1. Subsequent coni/ract with one employed by a manufacturer to do the worlc.
    
    1. Such subsequent contract made by the employer of the manufacture, and a delivery under it does not impair the force of the notice to the manufacturer.
    3. Rights of manufacturer after said rescission.
    
    1. His only remedy is an action for damages for a breach of the contract.
    Before Monell, McCunn and Jones, JJ.
    
      Decided December 31, 1871.
    Exceptions ordered to be heard at general term.
    In January, 1868, the firm of Banta & Brinkerhoff made an agreement with the defendant whereby they were to furnish him two lots of circus figures, one lot for four hundred and seventy-five dollars, to be finished in .thirty days, and the other for six hundred and twenty-five dollars, to be finished in sixty days.
    Banta & Brinkerhoff employed a Mr. Hamilton to make the figures.
    On the 12th of February,1868, defendant gave notice to Brinkerhoff, who was then foreman for Banta (the firm of Banta and Brinkerhoff had previously been dissolved, and Brinkerhoff had sold out the accounts of the firm to Banta) "that he would give Banta two days to deliver the work in, and if it was not delivered in that time he would make a contract with other parties to deliver. After the expiration of the two days, defendant made an agreement with said Hamilton. Hamilton agreed to furnish said figures to the defendant for a certain price to' be paid to him by defendant, and defendant agreed to take said figures from Hamilton and pay him the price agreed on therefor.
    Under this contract between Hamilton and defendant, Hamilton delivered the figures to defendant and received from him the stipulated price therefor.
    Afterwards Banta & Brinkerhoff made an assignment to plaintiff as follows :
    Hew York, May 20th, 1868.
    Mr. John D. Voorhies,
    
      To Banta & Brinkerhoee, Dr.
    
    Carvers and Turners, 582 Hudson street.
    Jan’y 24. Contract for circus figures.............$475
    
      “ 31. Contract for circus figures............. 625
    (Indorsed) $1,100
    For value received, we hereby sell, assign, transfer, and set over unto George Ackerman, the within bill or claim, and empower him to demand, collect, receive, and sue for the same.
    May 20th, 1868. John W. Banta.
    (Signed,) Albert J. Brinkerhoee.
    Banta & Brinkerhoee.
    
      Plaintiff then brought this action, setting forth in his complaint the above contract made between defend - ant and Banta & Brinkerhoff, alleging that Banta & Brinkerhoff made and delivered, or caused to be made and delivered to the defendant the figures called for by said contracts, and in all things complied with and completed said contracts ; that the price agreed to be paid had not been paid by the defendant, although the same had been demanded; averring the assignment to plaintiff, and alleging that defendant is indebted to the plaintiff in the sum of one thousand one hundred dollars, and demanding judgment for the said one thousand one hundred dollars with interest and costs.
    Defendant, by his answer, admitted the making of said agreements with Banta & Brinkerhoff, but denied each and every of the other allegations of said complaint, and alleged that said Banta & Brinkerhoff, although often requested by defendant to perform the said agreements, had always neglected and refused so to do.
    On the trial the facts above stated were fully established, there being no conflicting testimony concerning them.
    At the close of the case the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to prove a delivery under the contract, and that it appeared that the contract was revoked and rescinded at the expiration of the time.
    The motion was denied, and defendant excepted.
    Defendant then asked the court to submit the question to the jury—Whether this work was delivered by the plaintiff’s assignor in accordance with the terms of the contract? which was denied; and defendant excepted.
    Defendant also asked the court to submit to the jury the question—Whether the defendant gave notice to Banta & Brinkerhoff, at the expiration of the thirty days from the making of the first contract, that unless the work was delivered within the time, he should proceed to get the work from other parties ? which was denied, and defendant excepted.
    Defendant also asked that the whole case should be submitted to the jury, which was denied and defendant excepted.
    The court directed a verdict for the plaintiff for one thousand two hundred and forty-seven dollars and seventy cents ; to which defendant excepted.
    The court directed the exceptions to be heard in the first instance at the general term ; all proceedings on the part of the plaintiff under .the judgment to be stayed in the mean time.
    
      James N. Culver, attorney and counsel for plaintiff,—Urged :
    First. From the testimony of Banta & Brinkerhoff, it appears that Banta & Brinkerhoff employed one Charles Hamilton to make the carved wooden figures, and Yoorhies knew it, mentioned in the complaint, and deliver the same when completed to John D. Yoorhies. The evidence further shows that the figures contracted for were furnished by Hamilton; and they were delivered by Hamilton to Yoorhies, and accepted by him; and that some were finished in February, and they were afterward seen on the chariots in the circus company, where they were designed to be used.
    Second. It appears from the evidence that the first of said contracts was made on the 24th day of January; ' that it was to have been finished and delivered within thirty days—what number of the figures does not appear. Yoorhies himself testifies that on the 12th of February, eleven days before the expiration of the time limited in the contract, he, Yoorhies, said he would give two days longer to have the figures delivered; and that in a day or two after the two days had expired, he made an arrangement with Hamilton. That is, seven or eight days before the expiration of the time agreed upon, Yoorhies assumes to repudiate his agreement and make a new arrangement with Hamilton; and he now asks this court to sanction that transaction. When called upon to pay the bill to Banta & Brinkerhoff, defendant said he had settled the bill or the matter. He did not say he did not owe the bill. Banta bought Brinkerhoff out 1st February, 1868.
    Third. The denial of defendant’s motions and the refusals to submit to the jury as requested, were fully warranted by the facts of the case as proved. There was no question of fact to go to the jury. What Banta and Brinkerhoff swore to was not contradicted by Yoorhis, nor was Yoorhies contradicted.
    
      Wm. S. Hascall, defendant’s attorney, and Francis Lynde Stetson, counsel, urged :—
    The plaintiff failed to prove a delivery under the contract, which it appears was rescinded and revoked, and the evidence to this effect should have been allowed to go to the jury. Of course, a failure to prove such a delivery is fatal to the plaintiff’s supposed right of action. 1. The contract called for a delivery of the first work within thirty days. The work was not forthcoming at the expiration of that time. 2. Upon this failure of Banta to deliver his work in accordance with the contract, Yoorhies elected to rescind the contract; which was also a question to be passed upon by the jury. Yoorhies, after the expiration of the contract time, gave notice to Brinkerhoff (who swears that he communicated it to Banta) that unless the work was delivered within two days, he would have to resume it himself, and that he should make a contract with other parties to deliver ; the work was not forthcoming, and' he made such a contract. Hot only was there a failure to show a delivery within the fixed time, but it was presented as a question for the jury, whether Banta ever made any delivery at all. The plaintiff claimed that if Voorhis ever received the goods of Hamilton, he received them of Banta, as principal of Hamilton. This could b.e, only if the relation of principal' and agent continued to exist between these parties down to the time of delivery by Hamilton. The law and the facts both leading to the conclusion that the contract between Banta and Hamilton was rescinded, no claim can be made that any subsequent delivery by Hamilton was made under Ms contract with Banta.
    The law does not hold itself out as a means of profit to litigants, for this would encourage litigation, which it is the interest of the State should cease. Yet, according to the Chief Justice, the plaintiff is to recover all the contract price for the work, and to escape all-the charge and burden of furnishing it. If the plaintiff was entitled to recover anything, it was only the difference between the' price which Banta had agreed to pay Hamilton, and the price which he was to receive from Yoorhies. This was the anticipated profit which induced Banta to make the contract, and there is no reason that the court should increase it.
   By the Court.—Monell, J.

I think the notice given by the defendant to the plaintiff’s assignors, to the effect, that if the manufactured articles were not delivered within two days thereafter, he would make a contract with other parties, operated, after the expiration of the limited time, as a rescission by the defendant of the contract; and thereafter, the only remedy upon it, was an action for damages for the breach The delivering by Hamilton to the defendant, was not intended to be, nor was it, a delivering by the plaintiff’s assignors. It was made under a new contract, between Hamilton and the defendant, after the defendant had rescinded the previous contract. Hamilton’s relation to the plaintiff’s assignors, was, in the first instance, that of an employee to do the work. He was not bound to deliver without payment, and he accordingly refused to deliver. Thereupon he made a new contract with the defendant, and the only delivery was under that contract.

Whether Hamilton rendered himself liable to the plaintiff’s assignors for any supposed breach of his duty towards Ms employers, it is not necessary to inquire. He saw fit to make a new contract with one of the original contracting parties, and to fulfill that contract; and, it seems to me, the plaintiff’s assignors cannot claim that such fulfillment enured to their benefit, and gave them a right of action for the price of the articles.

Whether the defendant could wholly rescind the first contract, is not material. They did so far rescind, as to amount to a réfusal to accept any delivery under it; and the acceptance afterwards, under the new contract, was not an acceptance from the plaintiff’s assignors.

I am of the opinion, therefore, that the action for the price of the goods failed, and that the motion to dismiss the complaint on the ground that no delivery under the contract had been proved, should have been granted.

The exceptions should be sustained, the verdict 'Set aside, and a new trial ordered, with costs to the defendant to abide the event.  