Yorke v. Ver Planck , 1873 N.Y. App. Div. LEXIS 49 ( 1873 )

By the Court, Ingraham, P. J.

The main question in the case arises upon the construction to be given to the terms of sale; which provide for the shipment of the coal, as follows : “No responsibility assumed as regards providing vessels, boats or barges; but every exertion will be used to engage them, free of charge.” Also, “ Due diligence will be used to fill this contract.”

Under these stipulations, there can be no doubt but that, 'while the vendors did not assume the obligation to procure a vessel at all hazards, they were bound to use every exertion to obtain one, and to do so with diligence. It would also necessarily follow that if they did not obtain a vessel or boat within the usual time, they were nevertheless bound, in the shipment of the coal, to ship to the defendants, on their order therefor, according to the time in which the order was received. This was to be done within a reasonable time; and if it appeared that orders were filled, before that of the defendants, the court was right in submitting to the jury the question whether the plaintiffs had complied with their contract, as to the time of the shipment.

The plaintiffs claim there was a new order given in November, for the coal, and that such re-order extended the time within which they were to ship the coal.

It can hardly be said that what the defendants did was giving any new order. They were inquiring why the coal did not come, and urging to have it attended to, and it was not till after the price of coal had fallen one dollar or more, that the plaintiffs notified them, on the 2.4th of November, that a boat was engaged. Mere urging a performance of an existing contract affords no ground for calling such an act the making of a new one. At most it would be only a waiver of a previous default if the contract had been at once performed.

These matters were properly submitted to the jury, and the requests to charge as to re-ordering the coal, at subsequent dates, were properly refused.

The rule of damages, given by the court, was not correct, if it was intended to include prospective profits. The judge said: “If you find the coal was not shipped in its regular order, the defendants would be entitled to a verdict, and to the profit they would have made on the coal, if received in time.” The true rule of damages was, the difference between the cost price and the value of coal on the day when it should have been delivered, (Dana v. Fiedler, 12 N. Y. 40,) at the place of delivery. To this part of the charge there seems to have been no objection. There was no exception, and no request to charge otherwise. If the attention of the court had been called to it, the objection might have been removed by further instructions to the jury. Under such circumstances, there is no propriety in granting a new trial for such an error.

[First Department, General Term, at New York, January 6, 1873.

Ingraham and Handler, Justices.]

The judgment should be affirmed.