Opinion
Argued June 8, 1925
Decided July 15, 1925
Appeal from the Supreme Court, Appellate Division, First Department.
Nathan L. Miller and David Paine for appellants. Charles M. Woody and James M. Gifford for respondent.
The complaint alleges that on March 17th, 1917, the plaintiffs and defendant entered into the following agreement: "We are in receipt of your favor of even date and herewith confirm our understanding in accordance with which we have bought of you Mks 3000000 at the rate of 73 3/8 for delivery during the month of October, 1917. It is understood that the marks are to be paid for here and abroad not later than October 31st, 1917, and in case wireless should be interrupted by that time, payments are due here and abroad upon resumption of wireless." Wireless was interrupted before the date mentioned but was re-established on or about July 22, 1919. Plaintiffs thereupon notified defendant that they were ready and willing to carry out said contract and demanded the purchase price of the marks or $550,322.50 but the defendant refused to carry out the contract or to pay said sum although plaintiffs have remained ready and willing to carry out its terms. Judgment is, therefore, asked for such sum. It has been rightly held in the courts below that this complaint does not state a cause of action.
Whatever else the parties had in mind, clearly they did not on March 17th contemplate a present sale of marks in New York, with the immediate passing of title thereto, delivery and payment to be postponed.
It is far less difficult, however, to determine what the parties did not mean by this contract than to decide what they did if indeed they ever reached any common understanding. If they designed a contract for the purchase and sale of the marks themselves then the plaintiffs may not recover for two reasons. No place of delivery being specified and no usage of trade alleged, it should, as in the case of other commodities, be made at the plaintiffs' place of business (Pers. Prop. Law, section 124), and should have been made or tendered by October 31st — only the payment being then postponed by the interruption of wireless. Further if that were their meaning then the action is to recover the price of goods to be sold and may not succeed because no title passed to the purchaser. (Pers. Prop. Law [Cons. Laws, ch. 41], section 144.)
Probably, however, the parties had in mind the establishment by wireless of a foreign credit for the benefit of the defendant. The words "paid for here and abroad," "payments are due here and abroad," may show such intent. By custom and usage the phrases may have acquired a definite meaning. So too the reference to an interruption of wireless strengthens this possibility. Even so what definite agreement has been made? The country where the credit is to be established is not named. Perhaps as the letter speaks of marks, Germany was intended. If so, neither the city nor the bank is named. Perhaps again the custom is that German credits are to be made available at the Reich bank in Berlin and then that bank transfers them to a branch in any city in Germany upon request. We are not so informed. Again on what day in October is the credit to be made available? Is there a custom that this is to be at the buyer's or the seller's option? We do not know. In the absence of any allegation as to the technical meaning of the terms employed, of any custom or usage giving force to such a contract as the one before us, we cannot attempt to rewrite it, and insert necessary terms which the parties have omitted.
Even could we do so the complaint would still be defective. Assuming that the interruption of wireless referred to means such a total cessation of all wireless communication as actually occurred; assuming that this contract was not terminated but merely suspended because of the outbreak of war with Germany, notwithstanding the resulting depreciation in the value of the mark between March, 1917, and July, 1919, of which we may take judicial notice, yet this is clear. The establishment of the credit in Germany and payment therefor in New York could not be concurrent acts. The language used indicates that the former was to precede the latter. If so, notification that the plaintiffs were ready and willing to carry out the contract, coupled with a demand for the immediate payment of $550,322.50 was rightly refused. There was no proper tender of performance. There was no anticipatory breach of the contract by the defendant.
The judgment appealed from must be affirmed, with costs, and the question certified answered in the negative.
McLAUGHLIN, CRANE and LEHMAN, JJ., concur; HISCOCK, Ch. J., and CARDOZO, J., concur in result; POUND, J., absent.
Judgment affirmed.