Opinion
May 1, 1925
Appeal from Supreme Court of New York County.
Gleason, McLanahan, Merritt Ingraham [ H. Preston Coursen of counsel], for the appellants.
O'Brien, Boardman, Parker Fox [ Isidor Bregoff of counsel], for the respondent.
The complaint, in so far as material, in brief alleges a contract for the sale of certain merchandise by the plaintiff's assignors to the defendant Halle-Perris Trading Corporation, and that the defendants, appellants, Huth Company, third parties, as brokers, guaranteed the payment of the purchase price of the goods under a certain writing, which is set forth in the bill of particulars furnished by the plaintiff, and reads as follows:
"NEW YORK, September 18, 1919. "Messrs. MERLA QUIROS, "Woolworth Building, City.
"DEAR SIRS. — In virtue of the credit which we have opened for account of Messrs. Halle-Perris Trading Corporation, 29 Broadway, of this city, we beg to confirm to you that under this credit we will pay you, in exchange for dock receipts approved of by Messrs. Halle-Perris Trading Corporation, and covering 25 million Varena cigarettes and 25 million Matoaka cigarettes up to the extent of, and not to exceed, $160,000 — (say One Hundred and Sixty thousand dollars).
"Kindly acknowledge receipt of this letter, and oblige,
"Dear Sirs, "Yours truly, "(signed) HUTH CO."
The complaint further alleges that the defendant Halle-Perris Trading Corporation agreed with plaintiff's assignors that upon shipment and delivery of the merchandise and the presentation of dock receipts covering the same, it would approve the dock receipts and pay the purchase price of the merchandise; that certain of the merchandise was delivered and paid for by the defendant under the aforesaid instrument; that the plaintiff's assignors duly delivered to the defendant Halle-Perris Trading Corporation the balance of the merchandise and tendered to them dock receipts and invoices covering the same and demanded the payment of the purchase price and the approval of the dock receipts, which demands the said Halle-Perris Trading Corporation refused to comply with, whereupon the plaintiff's assignors demanded payment from the defendants, appellants, Huth Company in the form of the following letter:
"NEW YORK, November 21, 1919. "Messrs. HUTH Co. "30 Pine Street, "New York City, N.Y.:
"GENTLEMEN. — Referring to your letter of September 18, 1919, addressed to Messrs. Merla Quiros, we present to you certain dock receipts for cigarettes delivered at Pier 61 for the account of Halle-Perris Trading Corporation. These dock receipts have been presented to the Halle-Perris Trading Corporation with a demand for approval. That approval was declined.
"We hold that the Halle-Perris Trading Corporation is not warranted or justified in declining their approval and we therefore demand from you Fifty-seven thousand dollars ($57,000) against the delivery of these dock receipts.
"Yours very truly, "(signed) MERLA QUIROS, "By B.A. QUIROS."
at the same time notifying the defendants, appellants, Huth Company, of the due shipment and delivery of the merchandise to the defendant Halle-Perris Trading Corporation pursuant to their directions. The complaint further alleges that the defendants, appellants, Huth Company have refused to perform their contract of guaranty or to make payments pursuant thereto, and alleges performance by plaintiff and its assignors "except as prevented and excused therefrom by defendants and each of them, as hereinabove more particularly set forth."
Under the aforesaid letter of the defendants, appellants, dated September 18, 1919, the defendants clearly undertook to pay "in exchange for dock receipts approved of by Messrs. Halle-Perris Trading Corporation." The approval of the Halle-Perris Trading Corporation, therefore, was a condition precedent to any obligation on the part of the defendants, appellants, to accept and pay for dock receipts. Not only does the complaint fail to allege such approval of the dock receipts tendered to the defendants, appellants, but it affirmatively appears from the complaint that the Halle-Perris Trading Corporation refused to approve the same.
The bare allegation that the goods had been shipped to the vendee is not sufficient in itself to create a cause of action against the defendants, appellants. The plaintiff, therefore, has failed to allege performance, and no waiver of performance is alleged. The allegation of performance "except as prevented and excused therefrom by defendants and each of them, as hereinabove more particularly set forth," obviously is not a plea of waiver, but an attempt to plead performance. It is not necessary, however, to construe said allegation since it is expressly limited by the allegation "as hereinabove more particularly set forth," which allegation does not attempt to plead a waiver of the right to insist upon the approval of dock receipts tendered in connection with a demand for payment, but simply that the Halle-Perris Trading Corporation refused approval.
The complaint does allege that the defendants, appellants, paid on dock receipts covering prior installments delivered under the contract without such dock receipts having been approved. It appears, however, that the vendee specifically authorized the defendants, appellants, to pay for such goods. But assuming that the complaint alleges a waiver of the approval of the dock receipts as to certain installments, such waiver would not extend to subsequent installments. ( Fuchs v. Saladino, 133 App. Div. 710.)
By requiring the written approval of the Halle-Perris Trading Corporation, the defendant bankers were not requiring an idle ceremony but were avoiding all possibility of litigation, however futile, that the goods were up to the contract.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days after service of a copy of this order with notice of entry, upon payment of said costs.
CLARKE, P.J., and BURR, J., concur; MERRELL and MARTIN, JJ., dissent.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve amended complaint within twenty days on payment of said costs.