
    Carl F. Boker et al., Plaintiffs, v. The Demorest Manufacturing Co., Defendant.
    (Supreme Court, New York Trial Term,
    June, 1899.)
    Sales — Impossibility of performance.
    Where vendors, who are independent dealers in the output of several factories, agree to sell and deliver goods, made by one of these factories, which they state they have “ secured ”, they must deliver at the periods fixed or pay damages, and the impossibility o£ obtaining the goods from the manufactory, in time, affords them no excuse for the failure to deliver.
    Submission of cause upon documentary evidence and stipulation.
    John J. Gleason, for plaintiffs.
    Harmon & Mathewson, for defendant.
   Bischoff, J.

Admitting that the contract was entire, the parties have stipulated that judgment he rendered either for the plaintiffs for the value of the goods delivered, or for the defendant, for agreed damages, on account of the failure of delivery of the balance of the goods called for, the question to depend upon whether the plaintiffs’ obligation to deliver was absolute or was made conditional upon their obtaining the goods from the Climax Company, the manufacturer.

H absolute, the obligation was not performed; if conditional, the plaintiffs were not at fault and judgment is to go as the contract is construed, the evidence of its terms being found solely in the correspondence between the parties.

The agreement was. for the purchase by the defendant from the plaintiffs of a quantity of bicycle tubing, the correspondence showing that the output of the several factories, foreign and domestic, was expected to he in great demand, and the plaintiffs having continually urged the defendant to place its order with them before the market for the season became exhausted. The defendant, however, at the beginning of the negotiations, was not certain as to the quantity and size required, although recognizing the advisability of ordering early, and the letters disclose the parties’ intention that the order, when made, should be definite and conclusive.

The order was thereafter made for 93,000 feet of tubing of the Climax Company of England, and it is evident that the plaintiffs, when confirming the order, entered into an absolute contract, as principals, to deliver this tubing at the periods stated and for the price agreed.

Throughout the correspondence the plaintiffs’ position was that of independent dealers in the products of several factories and the contract was for the sale of goods which they stated they had secured.”

There is no word or suggestion of any condition that the plaintiffs’ performance should depend upon delivery to them by the Climax Company, and the tenor of the whole correspondence, leading to the order, was that the defendant should conclude an agreement with the plaintiffs upon which its reliance could be placed when manufacturing bicycles for the coming season.

The plaintiffs’ contention now appears to be simply that because the tubing was to be manufactured by a specified party and was understood not to be in existence when the contract was made, there was an implied condition, within the intention of the parties, that the delivery should depend upon the plaintiffs’ success in obtaining the goods.

The transaction admits of no such interpretation.

Here was no contemplated uncertainty of performance, since the plaintiffs had approached the defendant with the statement that they had “ secured ” the goods, and the ability of the manufacturers to observe their contract with the plaintiffs was in no way involved, the name of the factory having been used as bearing, at most, only upon the quality of the output.

Should the condition contended for be implied, upon this state of facts, then in every case a party would be absolved from performance of his engagements, if his ability to perform were affected by his possible disappointments in business, but the law is otherwise. Harmony v. Bingham, 12 N. Y. 107-108; Thomas v. Dickinson, 23 Barb. 431; Stanton v. Small, 3 Sandf. (N. Y. Super. Ct.) 230.

There must be judgment for the defendant upon the stipulation.

Judgment for defendant.  