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Marcus & Co. v. K.L.G. Baking Co.

Decided: January 13, 1939.


On appeal from a judgment of the Supreme Court.

For the appellant, Marcus & Levy (Louis Santorf, of counsel).

For the respondent, Kimmel & Kimmel (David Kimmel and Martin Kimmel, of counsel).


The opinion of the court was delivered by

HEHER, J. Plaintiff sued to recover damages for the alleged breach of a contract (the date of the asserted contractual undertaking is not specified) for the sale and delivery by defendant to it of "four Used Rotary Baking Ovens * * * on or before May 15th, 1937."

It was pleaded that the delivery "date" thus "designated was agreed to be of the essence of the contract for the benefit and advantage of both parties, in that, first, the defendant was in the process of erecting a new baking oven and required the space occupied by those sold to plaintiff, and in that, second, plaintiff, in reliance upon defendant's agreement to deliver by such date, was about to and in the process of reselling at a profit to a third party for delivery immediately thereafter, of which facts said plaintiff and said defendant apprised each other;" that delivery was not made until July 24th, 1937, and that, in consequence thereof, plaintiff defaulted in the performance of a resale contract made with the third party, and thereby suffered special damages -- i.e., loss of profits on the resale contract, moneys paid by way of settlement of a claim for damages made thereunder, expenses incurred in effecting adjustment of the claim, loss of "good will and future business of said customer," and the like.

Defendant interposed, by way of answer, a general denial of these allegations, and counter-claimed for the price of four used Fish rotary ovens sold and delivered by it to plaintiff "between and including April 7th, 1937, and July 24th, 1937." Plaintiff's answer to the counter-claim was a general denial of the averments so made.

Judge Wolber nonsuited the plaintiff, and submitted to the jury the factual issues arising from the evidence adduced on the counter-claim and answer. There was a verdict for defendant. Plaintiff appeals from the consequent judgment.

The nonsuit is now assigned for error.

This is the history of the transaction as disclosed by the evidence.

Plaintiff was a dealer in "bakery machinery, ovens, and equipment," at the city of Paterson, in this state. Defendant, on the other hand, was exclusively a baking concern. Its manufacturing plant was located in Long Island City, in the State of New York. It had contracted with another for the installation of new ovens in its plant; and the old ovens were to be continued in use until the new were installed. Under the belief that the installation of the new equipment would be completed on May 15th, 1937, or shortly thereafter, defendant, on the prior March 30th, advised plaintiff by letter that it had for sale "16 foot Fish Rotary Ovens, * * * in very good condition, in operation every day, * * * available on or about May 15th, possibly sooner," and asked to be informed whether plaintiff would be "interested." On the ensuing April 7th, one of plaintiff's officers journeyed to defendant's plant and entered into negotiations for the purchase of the equipment. An agreement was reached; and defendant undertook to reduce the terms to writing in the form of the following confirmatory letter dispatched to plaintiff that day:

"This letter will confirm our conversation of to-day, that you have purchased Two (2) sixteen foot Fish Rotary Ovens equipped with Grant Oil Burners, for the sum of Eight Hundred Dollars ($800.00). These Ovens are now located at this address, 21-30 -- 44th Avenue, Long Island City, New York. The following has been agreed upon by both parties concerned: -- Upon three days' advance notice, you will have your men dismantle and remove same from our premises. That you will require One and One Half (1 1/2) working days per oven to complete this work. That you will forward us your check for One Hundred Dollars ($100.00) by return mail as a deposit on these Ovens."

There was no dissent from this statement of terms. Plaintiff deferred its reply until April 30th ensuing, when it forwarded by letter a check for $100, "as deposit on our purchase of Two (2) sixteen foot Fish Rotary Ovens * * * for the sum of $800, balance to be paid on arrival." This inquiry was made: "Will you kindly * * * give us an idea when you expect us to dismantle these Ovens as we will be ready upon receipt of 5 days' notice in advance." On the following day, defendant acknowledged receipt of this communication and the enclosed deposit, and, in reply to the request for information as to the date of delivery, said: "We expect to advise you shortly, just when the ovens will be available to you."

On the ensuing May 5th, an agreement was reached, by telephone, for the sale of two additional ovens at the same price. Again, defendant forwarded to plaintiff a letter confirming the sale of "Two (2) Sixteen foot Fish Rotary Ovens * * * for the sum of $800.00" upon the identical terms and conditions outlined in the prior letter of April 7th, and requesting a deposit of $100. On the following day, plaintiff ...

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