Wilmerding v. Feldman ( 1906 )

Bisohoee, J.

The issue was whether the plaintiffs’ assignor, Akawo, had observed the condition of the contract in suit whereby he agreed not to sell to competitors of the defendants any of the samples of matting covered by the contract and ordered, by the defendants. There was a conflict of fact upon the question, the defendants having 'given evidence to show that certain of their local competitors had received some small amount of the matting for sale, and the testimony for the plaintiffs, being to the effect that their assignor had made no sale or delivery of such goods to persons other than the defendants. The matter involved simply the identity of the samples of goods exhibited to the jury; and, in the absence of this real evidence, we cannot say that the jury should have found the samples to be identical. The stipulation contained in the case on appeal is not that the samples were identical, but only that a witness had so testified; and it may well be that the. jury found the fact otherwise and accepted the testimony of Akawo that no sales were made of the goods ordered by the defendants.

In.view of an instruction given the jury, however, the verdict may well have been reached upon an erroneous theory of law, and there must be a new trial. .

At the request of the defendants, the court charged “ that if the jury find from the evidence that if Akawo sold any of the patterns selected by the defendants to any of their Philadelphia competitors they must find for the defendants, even though only a small quantity of such rolls were sold; ” but, at the plaintiffs’ request, this was immediately followed by the instruction that, “ in order to so find there must have been a substantial violation of the contract,” to which modification the defendants, excepted.

This was, in effect, an instruction that the plaintiffs’ assignor, the seller, could violate an absolute condition of the contract of sale and still recover for the defendants’ subsequent refusal to accept deliveries, if the breach of the condition were deemed by the jury to be less than a substantial violation of the contract. The parties had made the violation substantial by inserting this condition in the agreement, and the character of the condition could not be changed by a ruling of the court, or by the opinion of the jury. There was no room for an issue upon this point, and the defendants were entitled to a verdict, if the condition had been broken as a matter of fact, no matter how unsubstantial the violation might appear to be in the view of the jury. The rule of substantial performance does not apply to an unequivocal condition of this nature (Wiles v. Provost, 6 App. Div. 1), and it cannot be said that the error noted was harmless in its operation upon the close question of fact involved.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.

Scott, J., concurs.