Spratt, Johnston, & Co. v. Merchants & Manufacturers' National Bank

Opinion by

Mr. Justice Clark:

When this case was here before, we said that in order to recover damages for the nondelivery of any part of the remaining portion of the steel, it was necessary for Spratt, Johnston &■ Company, under their contract with the Seimens-Anderson Steel Company, not only to specify the particular kinds, anu to indicate the amount of each kind, of steel which they might from time to time require' the company to furnish, but also to designate the time for the delivery thereof. This was necessary, for the reason that the Seimens-Anderson Steel Company could not know in advance of any specification what one or more of the several kinds of steel mentioned in the contract Spratt, Johnston & Company might choose to have, nor how much of each, nor at what time, within the period of performance fixed hy the agreement, they might require the same to be furnished; and the steel company could in the very nature of the case be in no default until this was done.

It is contended, however, that under the evidence taken at the second trial no such specification was required. The evidence which is relied upon to effectuate a waiver of this preliminary requisite is found in the testimony of Edward S. Hartman, in which he says, that at the time of the failure of the steel company, or afterwards, he went to their place of business and found it closed up; that they told him they would open again in about a week; that at the expiration of that time he again called, when they gave him further assurance that they would start up in a short time. He called again, about a month after they were closed, with reference to the steel; he says: “They concluded that the thing was all up, and there was no chance of them starting again, and I told them We would have to go right into the market and get it somewhere else.”

The fact remains, however, that no demand was made, no specification furnished, and no time designated for the delivery of any of the undelivered portion of the steel. Non constat, as we said in our previous opinion, if these conditions of the contract had been complied with, that, by an assignment or otherwise, the order might not have been filled, or that creditors, to realize the avails of the contract, might not have intervened through a receiver, to provide the means of compliance.

We do not say, of course, that the steel company, by the use of apt words to that effect, might not have waived the necessity for any demand, specification, or designation of time for delivery ; but the testimony relied upon is wholly inadequate to establish the fact that the company did so.

The judgment is affirmed.