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notified defendant that they were ready and insert necessary terms which the parties have
willing to carry out said contract, and de- omitted.
manded the purchase price of the marks or [5] Even could we do so, the complaint
$550,322.50, but the defendant refused to would still be defective. Assuming that the
carry out the contract or to pay said sum, interruption of wireless referred to means
although plaintiffs have remained ready and such a total cessation of all wireless com-
willing to carry out its terms. Judgment is munication as actually occurred; assuming
therefore asked for such sum. It has been that this contract was not terminated but
rightly held in the courts below that this merely suspended because of the outbreak
complaint does not state a cause of action. of war with Germany, notwithstanding the

Whatever else the parties had in mind, resulting depreciation in the value of the clearly they did not on March 17th contem- mark between March, 1917, and July, 1919, plate a present sale of marks in New York, of which we may take judicial notice, yet with the immediate passing of title thereto, this is clear. The establishment of the creddelivery and payment to be postponed. it in Germany and payment therefor in New

[2, 3] It is far less difficult, however, to de- York could not be concurrent acts. The termine what the parties did not mean by language used indicates that the former was this contract than to decide what they did, to precede the latter. If so, notification that if indeed they ever reached any common un- the plaintiffs were ready and willing to derstanding. If they designed a contract for carry out the contract, coupled with a dethe purchase and sale of the marks them- mand for the immediate payment of $350,selves, then the plaintiffs may not recover | 322.50 was rightly refused. There was no for two reasons. No place of delivery being proper tender of performance. There was specified, and no usage of trade alleged, it no anticipatory breach of the contract by the should, as in the case of other commodities, defendant. be made at the plaintiffs' place of business The judgment appealed from must be af(Pers. Prop. Law, $ 124, as added by Laws firmed, with costs, and the question certified 1911, c. 571), and should have been made or answered in the negative. tendered by October 31st; only the payment being then postponed by the interruption of

MCLAUGHLIN, CRANE, and LEHMAN, wireless. Further, if that were their mean- JJ., concur. ing, then the action is to recover the price HISCOCK, C. J., and CARDOZO, J., conof goods to be sold, and may not succeed be

cur in result. cause no title passed to the purchaser. Per

POUND, J., absent. sonal Property Law (Cons. Laws, C. 41, 8 144, as added by Laws 1911, c. 571).

Judgment affirmed. [4] Probably, however, the parties had in mind the establishment by wireless of a foreign credit for the benefit of the defendant.

(240 N. 7. 507) The words “paid for here and abroad,” "pay.

SCHOPFLOCHER V. ZIMMERMAN. ments are due here and abroad," may show such intent. By custom and usage the phras (Court of Appeals of New York. July 15, es may have acquired a definite meaning. So

1925.) too the reference to an interruption of wire- Sales Qm418(3)—Damages, for failure of sellless strengthens this possibility.

Even so,

er to deliver held determined by market price what definite agreement has been made? The at time shipment should have arrived. country where the credit is to be established

Damages, for failure of seller to ship straw is not named. Perhaps, as the letter speaks braid from China at time specified, held propof marks, Germany was intended. If so, erly assessed on basis of market price at time neither the city nor the bank is named. Per- shipment would have arrived at destination, haps again the custom is that German cred- if shipped according to contract, in view of its are to be made available at the Reich's Personal Property Law, $ 148, subd. 3, rather bank in Berlin, and then that bank transfers should have been made.

than on basis of market price at time shipment 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 Division, First Department.

Appeal from Supreme Court, Appellate made available? Is there a custom that this is to be at the buyer's or the seller's option? Action by Herman Schopflocher against We do not know. In the absence of any al. Harris Zimmerman, doing business as H. legation as to the technical meaning of the Zimmerman. From a judgment of the Apterms employed, of any custom or usage giv- pellate Division (210 App. Div. 852, 206 N. ing force to such a contract as the one be-Y. S. 958), affirming a judgment of the Tria! fore us, we cannot attempt to rewrite it and | Term for the plaintiff for little more than

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(148 N.E.) nominal amount, plaintiff appeals by permis-, reason of war or for other causes the transit sion. Affirmed.

cannot be measured within limits reasonably Henry C. Burnstine and Samuel Green- determinate. Such is not the case before us. baum, both of New York City, for appellant. Here, by concession, the verdict rendered by

I. Maurice Wormser and Moses Altmann, the jury is supported by the evidence. The both of New York City, for respondent.

precedents are meagre. Those that are close

in analogy are in accord with our conclusion, CARDOZO, J. Defendant agreed to sell Melachrino v. Nickoll [1920] 1 K. B. 693. and plaintiff to buy 200 cases of straw braid,

Situations, more or less cognate, have been delivery f. o. b. New York, shipment to be considered in the briefs of counsel. They made from China during September, October, are mentioned only to exclude them. The and November, 1919. November passed, and question is not here as to the application of shipment was not made. The market price the statute to contracts calling for shipment of the commodity in New York was high dur- and delivery within a reasonable time withing November and December and for some out other specification. When such a case time thereafter. Following the early part of arises, there will be need to determine the February, 1920, it fell. The record does not rule of computation. So also the question is contain the evidence, but there is a summary not here whether the plaintiff would have been of its effect. By concession it warranted at liberty at the end of November, 1919, to the jury in finding that the goods, if shipped make another or forward contract, and on November 30, 1919, by the usual means of charge the defendant with the overplus of transportation contemplated by the parties, cost, Cf. Williston, Sales, 88 587, 588, 599. would have arrived in New York City in the Nothing of the kind was done. latter part of February or in March, 1920.

The plaintiff has been awarded the value The trial judge instructed the jury that the that would have come to him through the damages were to be computed according to performance of the contract, if performance the market prices prevailing when delivery had followed according to its terms. Upon was due. The result was verdict for little the record before us, he is entitled to no more than a nominal amount. The plaintiff more. insists that damages should have been com

The judgment should be affirmed with puted according to the prices prevailing when costs. shipment should have been made. By Personal Property Law (Consol. Laws,

HISCOCK, C. J. and MCLAUGHLIN, C. 41) $ 148, subd. 3:

"Where there is an available market for the
goods in question, the measure of damages, in

POUND, J., absent.
the absence of special circumstances showing
proximate damages of a greater amount, is the

Judgment affirmed.
difference between the contract price and the
market or current price of the goods at the
time or times when they ought to have been
delivered, or, if no time was fixed, then at the
time of the refusal to deliver."

(240 N. Y, 511)

STEPHEN PEABODY, JR., & CO., INC., v. The plaintiff insists that the time when de

TRAVELERS' INS. CO. livery ought to be made cannot be deemed to be fixed under a contract, unless stated in (Court of Appeals of New York. July 15, 80 many words, though the time of shipment

1925.) is prescribed and though data are supplied by which the period of transportation can be. Insurance Emo 237—Broker without right of

action for company's breach of contract with measured. We think this is too narrow a customer. reading of the meaning of the statute. Id

Whether contract by insurance company to certum est quod certum reddi potest. The furnish workmen's compensation insurance at plaintiff's reading, if it were to prevail, would fixed rate, notwithstanding later revision of apply to shipments from England as well as rates, was legal or illegal, its breach of such to those from China. It would apply to ship contract and notice to insurer that it had not ments by rail as well as to those by water. so agreed and that treatment of insured by In that view, a contract involving carriage the broker respecting such agreement was un

ethical, dishonest, and wanting in business infrom New York to San Francisco, shipment tegrity, gave no right of action to the broker, to be made on a designated day, would leave though he might lose his commission, or suffer the time of delivery indefinite, no matter how in his reputation for business acumen and judgcertain might be the duration of the transit. ment; the notice not being claimed to be liCases may, indeed, be imagined where by belous.


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2. Insurance 138(1)-Contract to furnish The difficulty with the plaintiff's situation fixed rates illegal and unenforceable.

here is not its novelty; it is its failure to Contract by insurance company with bro- suggest any wrong which the defendant has ker and his customer to furnish workmen's done to the plaintiff. When we speak of compensation insurance for a fixed amount, wrong, we recognize that the word has a notwithstanding any later revision of rates by much narrower and more limited meaning in rating board, held illegal and unenforceable in jurisprudence than it has in morals. view of Insurance Law, 8 67, and section 141 as

The amended by Laws 1922, c. 660, § 1, and Laws defendant's conduct may have offended the 1923, c. 436, § 1, under which insurance rates plaintiff ; it may have been mean or selfish ; were to be approved by state insurance depart. it may have been below the business standment, though Laws 1922, c. 660, § 3, and Laws ards maintained among insurance men and 1923, c. 436, § 3, adding section 141-b, did not insurance companies; it may have deprived apply at that time.

the plaintiff of a customer ; but, unless the

word spoken and the things done amount Appeal from Supreme Court, Appellate Di- to a wrong serious enough for the law to vision, First Department.

take hold of and redress, there is nothing Action by Stephen Peabody, Jr., & Co., to set the courts in motion. Inc., against the Travelers' Insurance Com What is it that the plaintiff charges the pany. From an order of the Appellate Di- defendant with having done? The New York vision (210 App. Div. 261, 205 N. Y. S. 536) Dock Company was a customer or client of reversing a judgment of the Special Term, the plaintiff's pertaining to workmen's comwhich denied defendant's motion to dismiss pensation insurance. The defendant, as has the amended complaint, plaintiff appeals. been stated, was a Connecticut corporation Affirmed.

authorized to carry on the business of such Moses & Singer, of New York City (Julian insurance in the state of New York. S. Eaton and Sam L. Cohen, both of New

Workmen's compensation insurance is reg. York City, of counsel), for appellant.

ulated by the law of this state. Section 67 William J. Moran, of New York City, for of the Insurance Law (Cons. Laws, c. 28) respondente

provides as follows:

Sec. 67. Approval of Premium Rates. EvCRANE J. The plaintiff, a domestic cor- ery insurance corporation or association, exporation engaged in the insurance brokerage cept the state insurance fund as administered business, commenced an action against the by the state Workmen's Compensation Com

mission, authorized to transact business in this defendant, a Connecticut corporation author

state, which insures employers against liability ized to do business in the state of New York, for compensation under the Workmen's Comwhich its attorney has been pleased to call pensation Law, shall file with the superintendan action analogous to interfering with trade ent of insurance its classification of risks and or calling. On a previous appeal from a premiums relating thereto, and any subsequent motion to strike out portions of the com- proposed classification of risks and premiums plaint, the Appellate Division (206 App. Div. together with basis rates and schedules, if a sys206, 200 N. Y. S. 612) required the plaintiff to tem of schedule rating be in use, none of which serve an amended complaint separating its surance shall have approved the same as ade

shall take effect until the superintendent of incauses of action. It is the amended com- quate for the risks to which they respectively plaint which is before us. The Special Term apply. The superintendent of insurance may denied the defendant's motion to dismiss the withdraw his approval of any premium rate or amended complaint as insufficient on the schedule made by any insurance corporation or face thereof. The Appellate Division has re- association if, in his judgment, such premium versed and granted the motion. Does this rate or schedule is inadequate to provide the

necessary reserves." amended complaint set forth a cause of action?

The defendant insurance company was reCounsel for the plaintiff, on the argument quired to file with the superintendent of inand in his brief, has assumed that the courts surance its classification of risks and premi. are reluctant to sustain a complaint setting ums, together with basis rates and schedules, forth a novel cause of action, or one that if a system of schedule rating be in use. The find no precedents in the books. Personal- premium and the basis rates and schedules ly I have recognized no such reluctance on must be approved by the superintendent of the part of any of the courts in recent years. insurance. Section 141 of the Insurance Law If there be a wrong which the law recognizes recognizes the existence of rate-making asas such, and which it is possible or practical sociations, and provides for their supervision for the courts to redress, the readiness to by the superintendent of insurance. Every find a remedy has been manifested. New such association is to file with the superinconditions and new circumstances are con- tendent of insurance its schedule of rates stantly arising.

whenever called for.

(148 N.E.) In 1922 and 1923 (Laws of 1922, c. 660, notwithstanding any subsequent revision of $81, 3; Laws of 1923, c. 436, 88 1, 3), section rates by the Compensation Inspection Rating 141 was amended and section 141-b added Board of the state of New York, except that, if so as to require insurance companies to com

said Compensation Inspection Rating Board ply with the rates adopted by the rate-mak- expressed in the said policy for the policy year

would provide lower premium rates than those ing organizations, and making it an offense beginning June 30, 1920, the defendant would for brokers or insurance companies to devi. give the said New York Dock Company the ate from the rates so fixed. These provi- benefit of said lower premium rates." sions, however, were not in the Insurance Law as it existed in 1919 and in 1920, the The gist of the complaint is that the detimes mentioned in the complaint. However, fendant contracted with the plaintiff and the the premiums charged by the defendant and New York Dock Company that its premium the rate basis or schedules adopted by it re- rates would not exceed à certain fixed and quired the approval of the superintendent of definite amount, notwithstanding any subinsurance according to section 67 of the In- sequent revision of rates by the compensasurance Law as it then existed. If the tion inspection rating board of the state of defendant were a member of a rating organ- New York. ization recognized by section 141 of the law

Here was a contract clearly against the as it existed in 1919 and 1920, the rates of spirit if not the letter of the law. Insurance such association would have to meet with rates for premiums and basis rates and the approval of the superintendent of insur- schedules were to be fixed by the state inance before they could become effective.

surance department and not by the defendThe complaint alleges:

ant. It was the duty of the superintendent “Sixth. Upon information and belief that said of insurance to see that the rates, and premi. New York Dock Company, on or about May 15, ums were adequate to protect the employees 1919, requested plaintiff as broker to submit to insured, and to preserve and provide the said New York Dock Company renewal rates on necessary reserve funds for this purpose. It workmen's compensation insurance to cover certain risks and liabilities of New York. Dock rate or to contract to fix a rate which did

was impossible for the defendant to fix a Company. That prior to June 15, 1919, it was known to plaintiff, defendant, and said New not have the approval of the state authorYork Dock Company that renewals of work-ities. As the Insurance Law recognizes the men's compensation insurance were generally rating association, it is to be presumed that issued at a certain base rate, which was sub- the rates and schedules fixed by such an asject to subsequent revision as to experience. sociation within the state of New York were That plaintiff and defendant thereupon estab- properly adjusted to the risks, and met with lished a custom, dealing, and practice between the approval of the superintendent of insurplaintiff as broker, and defendant as insurer, ance who was given supervision over them. covering the New York Dock Company's work

A contract to disregard an increase in such men's compensation insurance, whereby, in order permit the said New York Dock Compa- rates or basis rate, and to ignore the disapny to know in advance that its premium rates proval of the rating association, and therewould not exceed a certain amount, defendant fore of the superintendent of insurance was agreed with plaintiff that it would write a pol- against public policy and void. icy for New York Dock Company at rates not

The grievance which the complaint sets to exceed a certain amount, notwithstanding forth is that the defendant broke this alpremium rates thereafter to be fixed by the leged contract not to increase the insurance compensation inspection rating board might be higher. Thereupon, and in accordance with rates for the year 1920, thus injuring the such practice and agreement, defendant wrote plaintiff's (the broker's) business and its relasaid policy for the year commencing June 15, tions with its customer. It is said in the 1919, and plaintiff delivered same to the said complaint that the defendantNew York Dock Company."

on or about March 17, 1921, in a As to the year 1920 it alleges:

writing delivered by defendant to the New York

Dock Company, falsely, willfully, wrongfully, “Tenth. That thereafter and prior to June and maliciously represented to the said New 30, 1920, defendant duly agreed with plaintiff York Dock Company that the treatment rethat said last-named policy should be retained ceived by said New York Dock Company from by the said New York Dock Company and plaintiff with respect to the delivery to the said should become binding and effective, pursuant New York Dock Company of said policy coverto the custom, dealing, and practice between ing the policy year beginning June 30, 1920, and plaintiff and defendant hereinabove more fully with respect to the said agreement that the set forth; defendant particularly and specifical- premium rates therefor would not exceed a cerly agreeing that its premium rates to be charg- tain amount for the said policy year, was in fact ed said New York Dock Company for the policy unethical, dishonest, not truthful, and wanting year beginning June 30, 1920, would not exceed in business integrity upon the part of plaintiff; à certain fixed, definite, and named amount, that defendant in said writing intended to and


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did knowingly and falsely convey the intent and , N. Y. 80, 140 N. E. 203, 27 A. L. R. 1411.
meaning that it had not agreed with plaintiff There was here no such contract between
and with the said New York Dock Company the plaintiff and the New York Dock Com-
that the premium rates on said policy for the pany as existed in Posner Co., Inc, V. Jack.
said policy year should not exceed a certain son, 223 N. Y. 325, 119 N. E. 573.

However we may view the claim put forth
The plaintiff disclaims that this action is by the plaintiff, we cannot see that it has
one for libel. The counsel in his brief frank stated a cause of action or alleged any
ly states that the letter written by the de- wrong recognized by the law.
fendant to the New York Dock Company The judgment dismissing the complaint
will not sustain such an action. Wherein should therefore be affirmed, with costs.
then is the wrong which the law recognizes?

[1] If the defendant made a contract to HISCOCK, C. J., and CARDOZO, Mc insure the New York Dock Company for a LAUGHLIN, ANDREWS, and LEHMAN, certain premium for the year 1920, and JJ., concur. agreed not to change the rate, the agreement, POUND, J., absent. if legal, could be enforced by the New York Dock Company. If the defendant deliberate Judgment affirmed. ly broke its contract, such breach did not constitute an actionable wrong in behalf of the agent who had procured the insurance.

(240 N. Y. 520) He would be entitled to his commission and LAMBORN et al. v. NATIONAL PARK BANK that is all. Should the insurance company

OF NEW YORK. claim that its contract was made without au (Court of Appeals of New York. July 15, thority, the question of authority could be

1925.) tried out in an action by the New York Dock Company. Whichever way the ques

1. Banks and banking Om 191-Promise to pay

letter of credit is implied or inferred from tion was decided, the insurance agent would

statement that credit has been established have no cause of action, although he might

and is irrevocable. lose his commission or suffer in his reputa

Letters of credit do not usually contain a tion for business acumen and judgment direct promise to pay; but such promise is im. should the contract have been made without plied or inferred from the statement that credproper authority on behalf of the insurance it has been established and is irrevocable. company's agents.

2. Banks and banking 191-"Confirmed ir. [2] On the other hand, the insurance bro

revocable letter of credit,” "irrevocable let. ker is supposed to know the law as well as

ter," or "confirmed credit" defined. the insurance company, and, if the latter had

A "confirmed irrevocable letter of credit," no right under the insurance laws to fix a

an "irrevocable letter,” or a "confirmed credit" rate of premium not acceptable to the in- is a contract to pay on compliance with its surance authorities, the broker would have terms, and needs no formal acknowledgment or no right to procure from it a contract so acceptance other than is therein stated. to do. In other words, the insurance com-3. Banks and banking Em 191—Presenting sight pany could not agree with its insured that

drafts against irrevocable letter of credit in the premium rate fixed by it would not be December held compliance with letter of credchanged, when the rate-making association it covering shipments of sugar from Java in under the laws of the state of New York August and September. demanded a higher rate. Such a contract

Bank, on May 5, 1920, opened confirmed would be illegal as one made in contraven- credit without expiration date in plaintiffs' fation of the laws of the state of New York. vor for named amount payable against delivery The insurance company, having made such a of sight drafts for sugar, shipments to be made contract, could not be held to it, and would from Java during August and September, 1920. violate no right of the insurance broker by Held, that implied provision that sight drafts

were to be presented within reasonable time repudiation. The law favors obedience to

was not changed by plaintiffs' request that exits statutes rather than the keeping of con- piration date be set as of December 31, 1920

, tracts in violation of them. The law does and bank's reply thereto, and that by presenting not recognize that as a breach which is in drafts in December they complied with condiobedience to a statute. Whatever may have tions entitling them to payment. been the motives of the defendant in repudi- 4. Banks and banking 191--In absence of ating the rates for 1920 was entirely imma

fixed time for presentment law reads into let terial. Even if it acted willfully and mali

ter of credit provision that sight drafts were ciously, as the plaintiff alleges, it would not

to be presented within reasonable time. be liable, provided it had a just and rightful Where bank issued irrevocable letter of purpose to serve. Beardsley v. Kilmer, 236 credit, payable against sight drafts with ship

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