Kemple v. Darrow
The Superior Court of New York City
Appeal from the judgment of a referee. The action was to recover damages for the breach of a written contract for the delivery of materials for budding. The plaintiff alleged the non-delivery, and claimed to recover the difference between the market and contract price.
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Appeal from the judgment of a referee. The action was to recover damages for the breach of a written contract for the delivery of materials for budding. The plaintiff alleged the non-delivery, and claimed to recover the difference between the market and contract price. The answer averred that the materials were to be delivered before the commencement of the next ensuing winter; that the plaintiff neglected to proceed with the work, and would not permit the defendants to make the delivery within the time aforesaid ; and that he so improperly delayed the erection of the building, and so…
1Opinion of the Court
By the Court.—Mowell, Ch. J.
The contract was silent as to the time of delivery, and either party could have limited the time by a demand or offer. Omitting to so limit the time, it was a continuing contract, until rescinded by the failure of the defendants to perform.
There was some evidence tending to show some intention or understanding of the parties, that the material was to be delivered before the close of the current year; but it was not of a nature to so limit the time as to excuse a performance afterwards.
The referee has made no finding on that subject. His general finding is, that the…
2Cases cited2 opinions
- Mosher v. HotchkissNew York Court of Appeals · 1866
- Meacham v. . BurkeNew York Court of Appeals · 1873