
    Frederick Hartwig, Respondent, v. American Malting Company, Appellant.
    Laches in moving to suppress a commission — review of an order denying the motion, by a notice in the notice of appeal from the final judgment.
    
    A motion to suppress a commission to take testimony, not. made until after the case, at the instance of the party On whose behalf the commission issued, has been placed upon the short cause calendar and is likely to be tried at an early day, may properly he denied upon the ground of loches.
    
    
      Qucere, whether a statement in the notice of appeal taken from a judgment entered in an action, that the appellant would bring up for review an intermediate order denying a motion to suppress a commission to take testimony, is sufficient to warrant the court in reviewing that order.
    Appeal by the defendant, the American Malting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of February, 1902, upon the verdict of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 2d day of December, 1901, denying the defendant’s motion to suppress certain depositions taken under a commission issued in the action, and also from an order entered in said clerk’s office on the 25th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Graham Sumner, for the appellant.
    
      Rudolph Loreck, for the respondent.
   Patterson, J.:

On the trial of this action a verdict was directed for the plaintiff, and from the judgment entered upon that verdict, and from an order denying a motion for a new trial, the defendant appeals. The action was brought to recover a sum of money which it is alleged in the complaint the defendant agreed to pay to the plaintiff as the consideration for the cancellation by the plaintiff of a contract made by the defendant with him by which the latter was to sell certain merchandise to the former and deliver it within a period fixed by the contract. It is alleged in the complaint that on the 28th of August, 1899, the defendant contracted in writing to sell to the plaintiff 10,000 bushels of barley at forty-eight cents a bushel, free on board, New York, delivery to be made within three weeks after the 28th of August, 1899 ; that the defendant failed to keep the agreement and to make delivery of the 10,000 bushels of barley ; that as a consequence of such failure of the defendant to carry out the agreement, the plaintiff sustained damage, and on the 18th of December, 1899, the defendant and the plaintiff agreed to fix the amount of damages sustained by the plaintiff at a sum equal to the amount of the net profits which the plaintiff would have derived from a subsequent sale he had made of the 10,000 bushels of barley to third persons, if the defendant had performed its contract ; and it is further alleged that in consideration of the plaintiff’s agreeing to release the defendant from any further obligation under the contract of August 28, 1899, and to cancel such contract, the defendant would pay to the plaintiff the amount of the'net profits above referred to, as soon as notification would be made to it of the exact amount thereof, and that subsequently the plaintiff notified the defendant of the exact amount, which was the sum of $1,742.40, and that the defendant has neglected and refused to pay that sum. The answer of the defendant admits the making of the contract of August 28, 1899, and it admits that it never delivered any barley pursuant to that contract, which is an admission of failure of performance of the contract. The allegations of the complaint relating to the making of an agreement to pay a specific sum when ascertained as a consideration for the plaintiff releasing the defendant from and canceling the contract are put in issue by the answer.

The only real question arising on this appeal from the judgment is whether a contract was made as alleged in the complaint. If that contract were made under the circumstances'alleged in the complaint there was an ample consideration to support it. All the negotiations between the parties respecting the subject-matter of the action were by correspondence, and it is by that correspondence that the contract must be established. The letters passing between the parties show not only that the contract was made, but that the proposition emanated from the defendant, and the contract was made upon a state of facts conceded by the defendant in that correspondence — and, being so conceded, they did not require independent proof on the trial of the cause. The correspondence shows that the barley which the defendant had contracted to deliver to the plaintiff had not been shipped up to the 17th of October, 1899, when the plaintiff notified the defendant that he was being hard pressed to deliver the 10,000 bushels; and on the 10th of November, 1899 the plaintiff wrote to the defendant that he had got into great difficulties about the 10,000 bushels, and requested the defendant to ship the barley at once. That letter was answered by the defendant’s officer or agent on the twenty-first of November, and the writer expresses his regret at the delay in the shipment of the 10,000 bushels, and then goes on to state that he thought he would have been able to ship before, but that there suddenly arose such a demand for barley for export that they could not buy at forty-eight cents (which was the price at which the defendant agreed to sell to the plaintiff). The writer then proceeds further to say that they had held back buying for so long a time in the hope of finally getting the barley at their price. The letter then continues as follows: “ Perhaps you and we would be served best if we remit to you the profit which, you have made on the sale of the barley if the amount is small. Perhaps your customers will release you from your contract; then you would have neither any * difficulty with the bags, for which we have to charge extra. A speedy reply request .”

Here it is obvious that the proposition was made by the defendant for a settlement of this contract, and' it was made in view of the fact that the defendant knew that the plaintiff had entered into a contract for a resale of the barley to other persons. On December fifth the plaintiff wrote to the defendant again concerning the barley, and in his letter stated: “ There can be no doubt but that you sold us the barley, and we have sold same to a malting concern at Mark 15.80 per 100 kilo, c. i. f. Dusseldorf. We put at your disposal the confirmation of this from the Malting concern. * * * Under these circumstances we cannot release you from your contract unless you make good to us the difference between the purchase and sales price. Only in this way we will be put into a position to be released of our contract to take the malt from that malting concern.” To this letter of December fifth the defendant, through its agent, replied as follows: “We are in receipt of your favor of the 5th inst,; as you give us the choice either to ship you .10,000 bushels 2-rowed barley or to make good to you the difference between the purchase and sales price after deducting freight, duties and other- expenses we have decided to do the latter, and we request you to notify us of your net profit on the transaction under confirmation of the purchaser as you proposed. We will then immediately remit to you the amount. * * * Requesting an immediate reply, we remain,”- etc. On the thirty-first of December the plaintiff wrote the defendant, inclosing a copy of the contract with the party who had contracted with them, and in their letter stated : “ Tou will learn from it all that is material, particularly that the difference which we note between the purchase and sales price is perfectly correct. We request, therefore, an immediate remittance of the amount mentioned, so that we can settle with the party who bought from us.”

From this correspondence it results that the contract set forth in the complaint was entered into between the plaintiff and the defendant. It was a binding contract. The amount of loss to the plaintiff occasioned by the failure of the defendant to perform its contract was liquidated, and the legal effect of the correspondence was that the plaintiff discharged the defendant from the contract in consideration of its promise to pay that liquidated amount,, fixed upon with full knowledge by the defendant of all the circumstances of the case.

The testimony of witnesses' was taken in Germany upon commission. The defendant,, contending that certain irregularities which. affected the proper execution of that commission existed, made a, motion at the Special Term to suppress the commission, which motion was denied. No appeal was taken directly from that order; but in the notice of appeal from the judgment it is stated that the appellant will bring up for review the intermediate order of the court denying the defendant’s motion to suppress the depositions. Without considering the question as to an appeal lying from this order at this time and in this form, it is sufficient to say that the court at Special Term was fully justified in denying that motion because of the loches of the defendant in making it. The commission was returned and filed in the office of the clerk of the county of New York on the 30th of August, 1901, when the plaintiff made a motion to put the case on the short cause calendar, which motion was granted, and it was not Until after that motion was granted and the case was likely to appear on the calendar for trial at an early day that the defendant moved to' suppress the commission.

The judgment and order appealed from should be affirmed, with costs.

'Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs. 
      
      
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