this obvious conflict in testimony as to the number of cars on hand, it is significant that plaintiff's inventory of cars increased every month during the last quarter of 1948. Furthermore, Traendly testified that the market began to decline in November, 1948 until early spring 1949; that he had more cars than he was able to deliver in November and December, 1948. And Harrison testified that Traendly told him to accept no cars for January 'because we had sufficient cars in stock * * * We felt we had sufficient cars under the business conditions of that time, and in the slow winter months we had sufficient cars in stock.'
Despite this uncontradicted testimony of the plaintiff's then sales manager, the plaintiff would have the court believe that it expected the delivery of all the bonus cars during the years 1948. It is incredulous. I could well imagine what would have happened if the defendant had 'dumped' the balance of sixty-three bonus cars on the plaintiff during the month of December, 1948, without an order from the plaintiff. It must be remembered that Traendly testified that on December 1, 1948, plaintiff had nineteen cars on hand.
Although plaintiff argues that defendant was obligated to deliver all of the bonus cars in 1948, plaintiff ordered four bonus cars in December, 1948, and accepted delivery thereof in January, 1949; and ordered seven bonus cars in December, 1948, for February, 1949 delivery, which orders later were cancelled. I must find plaintiff interpreted its rights under the contract to call for deliveries beyond the year 1948.
As to plaintiff's argument that its acceptance of bonus cars in 1949 was merely a fulfillment of its duty to mitigate damages, such a contention is inconsistent with plaintiff's conduct in cancelling the orders for February, 1949 delivery and remaining silent for four months subsequent to defendant's August 25, 1949 letter requesting plaintiff to submit orders for bonus cars. If plaintiff, as is argued, was in good faith mitigating damages in January, 1949, it acted in bad faith by cancelling orders in February, 1949, and in September, 1949, by not placing orders for bonus cars despite defendant's request.
It is settled law in New Jersey that where the contract is ambiguous, the practical construction of it as evidenced by the conduct of parties, such as their acts while partially performing, 'is entitled to great weight, if not controlling, in determining its proper interpretation.' Lippincott v. Content, E. & A.1939, 123 N.J.L. 277, 8 A.2d 362; I. Tannenbaum Son & Co. v. Taglareni, S. Ct. 1935, 115 N.J.L. 299, 179 A. 633, 636; Thomsen v. Riedel, E. & A.1935, 114 N.J.L. 379, 176 A. 701; Corn Exchange National Bank & Trust Co., Philadelphia v. Taubel, E. & A.1934, 113 N.J.L. 605, 175 A. 55; Albert v. Ford Motor Co., E. & A.1934, 112 N.J.L. 597, 172 A. 379; Basic Iron Ore Co. v. Dahlke, E. & A.1927, 103 N.J.L. 635, 137 A. 423. The contract sued on is not ambiguous in that unclear language is contained therein, but the contract lacks any delivery date terms, which is certainly an obscurity within the purpose of the ambiguity rule.
Plaintiff argues that the following language in defendant's letter dated December 30, 1947, evidences an intent by defendant to deliver all of the bonus cars in 1948: '* * * we earnestly request the full cooperation of all of you to the end the objective of building as many cars as possible during 1948 be realized.' Such language is not a statement of intention to deliver in 1948 to the participating dealers all of the bonus cars earned by them; the language is hortatory, not promissory.
In order to aid the court in interpreting the intent of the parties to a contract where the terms are either ambiguous or, as in this case, there is omitted a specific obligation, the court should consider the conduct engaged in by the parties while they were operating under the contract. Albert v. Ford Motor Co., supra, wherein the court construed an ambiguous contract with the aid of a letter written subsequent to the date of execution. Restatement, Contracts, (1932) Section 235(e). By its conduct in December, 1948 and January, 1949 in ordering and accepting cars, plaintiff regarded the contract as calling for deliveries at least until February, 1949. From that date until August 25, 1949, there is no record of any correspondence between the parties. On the latter date, defendant wrote to plaintiff: 'According to our records, the number of bonus cars to which you are still entitled is: 51' and requested that plaintiff order and specify the bonus cars of each model ordered the bonus cars not required then or later, and those bonus cars as to which later orders might be placed. Plaintiff did not place any orders as requested by defendant, and remained silent until December 29, 1949, when the first written protest regarding plaintiff's alleged rights under the contract was sent to defendant. It seems strange to the court that during all of this time Traendly never made any written protest to the defendant nor showed by any overt act his construction of the contract that all cars had to be delivered in 1948. He never sent a letter or telegram to either the New York zone office or to the main office of the defendant in Detroit until the letter of December 29, 1949. This is also incredulous. That is not the way the ordinary reasonable prudent man would have acted under the circumstances. Thus, it must be concluded that the parties themselves, by their conduct, construed the contract as calling for deliveries of the bonus cars at least up to December 29, 1949.
Since pursuant to the customary manufacturer-dealer procedure, I find plaintiff failed to place any order for bonus cars despite defendant's August, 1949 request for such order, plaintiff must be denied damages as I find there has been no breach of contract by reason of defendant's failure to deliver bonus cars promised plaintiff. Plaintiff, in effect, having rejected defendant's tender of performance cannot now recover a remedy for defendant's failure to perform.
The foregoing opinion shall constitute findings of fact and conclusions of law, as required by Fed.Rules Civ.Proc. rule 52, 28 U.S.C.A.
An order may be submitted in conformity with the opinion herein expressed.
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