Lord Construction Co. v. Edison Portland Cement Co. , 190 N.Y.S. 669 ( 1921 )

Greenbaum, J. (dissenting):

The contract between the parties stated: “ Time of delivery during life of job, estimated to be completed by December 31st, 1917.” It also provided that “ the Cement Company shall not be obliged, except at Ms option, [italics mine] to make deliveries after December 31, 1917.”

When on November 24, 1917, plaintiff wrote to defendant saying we “ would like to have you hold up for the time being to the extent that our maximum requirements will be 1,000 bags per day. We appreciate very much the extra effort that you made to get cement to us and we trust that the change mentioned above will not inconvenience you,” the obvious purpose of plaintiff was to have the defendant exercise its option “ to make deliveries after December 31, 1917,” and' not to insist upon its strict legal right not to be obliged to make deliveries after that date. The reply to this letter is: “In accordance with yours of November 24th, we have reduced shipping schedule,” etc.

’The reply clearly implied that defendant acquiesced in the request made in the letter of November twenty-fourth, and plaintiff was justified in assuming that defendant had waived the provision of the contract that it was not obliged to make deliveries 'after December 31, 1917, and had exercised its option to make the deliveries as requested by plaintiff.

To my mind, defendant’s reply of December 3, 1917, expresses in effect an unqualified compliance with plaintiff’s request.

It must, of course, be assumed that both parties had in mind, when the letters above mentioned were exchanged between them, the time provisions in the contract; and plaintiff was justified in construing the defendant’s reply to mean that the time clause of the contract would be waived “ in accordance ” with the request made in its letter of November twenty-fourth. Had defendant intended not to comply with this request, it should have frankly so stated and not lulled the plaintiff in the belief that it would make deliveries on the basis outlined beyond December 31, 1917, under the terms of the original contract. Had such a frank statement been made, plaintiff doubtless could have made provisions for storing the cement still required to complete its job, and thus reduced the loss which would result if defendant insisted upon its right to make no deliveries after December 31, 1917.

I am of opinion that the exceptions should be overruled and judgment directed to be entered upon the verdict.

Exceptions sustained, with costs, and judgment ordered in accordance with opinion. Settle order on notice.