On appeal from the Camden County Circuit Court.
For the appellant, Walter S. Keown (William A. Early King, of counsel).
For the appellee, Casselman & Boulton (Walter R. Carroll, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is an action at law for breach of contract. Plaintiff sued to recover the damages it sustained as a result of the alleged wrongful refusal on the part of the defendant fully to carry out its contract to purchase from plaintiff twenty-five
bales of prime Polish hops, 1936 crop.
Plaintiff is a corporation of the State of New York with its principal place of business in the city of New York. It is engaged in the business of selling malt and hops.
Through the acknowledged effort of its commission broker, Peter Lust, while he was attending a convention of brewmasters in Philadelphia, plaintiff, on October 6th, 1936, received, through the mail, at its New York office, a written order from the defendant for the purchase of "twenty-five bales of prime Polish hops, 1936 crop," f.o.b. Philadelphia docks. The price was fixed at fifty-eight cents a pound, twenty-four cents of which covered the import tax. Two of the twenty-five bales so ordered were to be shipped immediately. If the two bales so shipped were unsatisfactory, the remaining twenty-three bales were to be subject to cancellation. If satisfactory, the remaining twenty-three bales were to be shipped "at the disposal of Mr. Martin," an officer of defendant. The day after the receipt of this order (October 7th, 1936), plaintiff, in writing, notified defendant of its acceptance thereof. It was agreed that plaintiff would draw a sight draft, with bill of lading attached, for each shipment made and that defendant would, in turn, pay each draft so drawn.
In pursuance of calls finally made for shipments (some were the result of much correspondence and many conferences between the parties), plaintiff made the following deliveries: October 11th, 1936, two bales; January 13th, 1937, five bales; February 23d, 1937, six bales, and October 11th, 1937, two bales. Defendant accepted and paid for the fifteen bales so delivered -- the last payment being made on March 15th, 1938. Notwithstanding the fact that under the custom of the brewing trade defendant was obliged to call for the entire shipment before October 1st, 1937, defendant refused to call for the remaining ten bales. That refusal, generally stated, was based on the claims that the hops of the last two shipments were of an inferior quality to those originally ordered and were not delivered from the same lot as the first two shipments. Defendant, therefore, took the position that it was no longer obliged either to call for the delivery of the remaining ten bales or to pay for same.
Plaintiff's claim, on the other hand, was that it had fully complied with its contractual undertaking with defendant. Plaintiff had set aside the ten bales for defendant and on June 18th, 1938, drew a sight draft on defendant for the balance of the contract price. Defendant refused to honor it, and plaintiff, thereafter, on June 29th, 1938, instituted this suit. Plaintiff abided an available market for the resale of the ten bales of ...