tools, if required. These means are also to [ [1-3] Assuming that under article 24 of the be used to obtain the desired surface treatment. The result is what is known as “natural cement finish." contract the question as to whether such work is susceptible of classification under the schedule of unit prices is to be submitted Under the contract, therefore, provided the to the engineer, we still think that his action concrete surfaces were finished as indicated may not be sustained. If his certificate is a in the drawings, or with a natural cement condition precedent to payment, it still may or with a mortar face finish if the commis- not be arbitrarily withheld. So if his action sion so preferred, the contractor would be involves an erroneous construction of the paid therefor at unit price rates. If a nat- contract. If it appears that there is no reaural cement was chosen, it was "to be rub-sonable basis whatever for his action, if it is bed, washed, dressed, tooled, or otherwise patently erroneous, then we find the equivatreated on the surface as directed." The lent of bad faith upon his part, and the conpurpose of this clause was "to insure a uni- tractor is not bound by his decision. form surface of the desired color and tex- [4] Such is the situation here, and the trial ture." Any film was also to be removed. This judge would have been justified in directis the "desired surface treatment" elsewhere ing a verdict in favor of the plaintiff upon referred to. To attain this end doubtless this claim. Either the decision of the ensome reasonable latitude was allowed, but gineer is entirely arbitrary or it must be the result was to be fairly described as "nat-based upon an interpretation of the contract ural cement finish." The drawings showed a mortar face finish on all vertical surfaces, and on horizontal surfaces no finish except such as is the result of pouring concrete into forms. The commission evidently decided this was not satisfactory. Samples showing different ornamental designs were prepared and considered. Finally, on September 3d, the contractor was ordered to finish all exposed concrete surfaces on the concrete railway "with a natural cement finish, washed, dressed, tooled, or otherwise treated as provided by the specifications for this work; details of treatment to be furnished you later." The contractor thereupon did finish all exposed surfaces with a natural cement finish. After this was hardened and set, however, under the theory that he was then required to rub, wash, dress, tool, or otherwise treat it as directed, a great quantity of work was ordered to be done by him. On each of the cement columns supporting the railroad he was required to make panels for about half their width. To do this it was necessary to remove all the cement finish and to cut into the main body of the concrete to some depth, leaving a surface much rougher than would be the ordinary surface of concrete coming from the form. Around these panels a border of a few inches of the cement finish was left, but this was incised by straight lines so that the panel appeared to be framed in something that resembled brick. Outside of this frame again all of the cement finish was removed and the main body of the concrete exposed, but upon it was a somewhat smoother surface than that allowed for the interior panels. Under the classification by the engineer for this work the contractor has been allowed at the unit price bid for natural cement finish. which permits him to give to the words "the entire concrete surface to be finished shall be treated in such manner as directed" a far wider meaning than is permissible. The contractor did far more than provide a concrete finish with a uniform surface of desired color and texture which was what he agreed to do. Whichever alternative we adopt, the plaintiff is entitled to be paid for the unusual and extraordinary work he was required to do. [5] The items 59, 3, and 60 suggest a slightly different question. Of the 4,000 feet of concrete elevated railroad about 1,400 feet was occupied by stations. The original plans, as the jury has found, applied to station areas, and called for a series of concrete arches to support the structure at these points. They also showed that there would be required for this portion of the railroad 64 cross girders containing some 90 per cent. of all the steel involved and of uniform construction. It also showed a few grillage girders and some steel posts to support the station canopy. Upon this showing the contractor bid for riveted steel painted and erected $60 per ton, and the same amount for steel beams and shapes with connections painted and erected. Later the commission substituted a steel structure for that originally designed for these stations. This had called for 400 pieces of steel weighing 2,200 tons. The new plan which was actually carried out called for 4,200 pieces weighing 4,200 tons. In other words, the number of pieces was increased by 11 times, and the weight increased twice. The jury has found that the change was a radical one. Clearly the kind of work required by the change was far more expensive per ton than that originally contemplated, and the steel itself was also far more expensive. (148 N.E.) fied must be made at vendor's place of business before agreed date. It is perfectly true that steel is steel. But 2 Sales 79-Delivery of goods not speciit is also true that, when it is to be used in a manner totally different from that originally proposed on the basis of which bids were made and necessarily costing far more per ton, it may not reasonably, fairly, and in good faith be classified as similar. Or, if the construction given to this contract by the engineer involves that result, the construction is erroneous. Item No. 42 is for the cost of cutting a panel in an abutment. This work was not included in the original contract, but it was ordered by the commission. It was clearly extra work ordered, as the commission had a right to order it, unclassified, and should be paid for at cost, plus 10 per cent. As we have said, we have discussed these matters as an example of the various items of which the contractor's claim against the city is composed, and we are satisfied that the contractor may not be defeated because of the provision in the contract referred to by the Appellate Division. Assuming that he is entitled to recover, there is no dispute as to the amounts involved. In our opinion the result reached by the trial court is correct, and we disapprove of the modification made therein by the Appellate Division. The judgment of the Appellate Division in so far as it reverses the judgment of Trial Term must be modified so as to affirm such judgment, and as so modified affirmed with costs to the appellant in this court and in the Appellate Division. HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, and LEHMAN, JJ., concur. Judgment accordingly. (240 N. Y. 501) Where, in a contract for sale of marks, no place of delivery was specified, and no trade usage was alleged, it should have been made at vendor's place of business, and before agreed 124, as added by Laws 1911, c. 571. date, as provided by Personal Property Law, § 3. Sales 342-Passing of title necessary before action on contract of sale. Action on a contract for sale of marks cannot be maintained until title has passed to purchaser, in accordance with Personal Property Law, § 144, as added by Laws 1911, c. 571. 4. Pleading 27-Necessary to allege meaning of technical terms of contract. Where, in an action on a contract for sale of marks, complaint contained no allegations as to meaning of technical terms used, or of custom giving force to contract, the court will not attempt to rewrite it. 5. Evidence 18-Judicial notice taken of depreciation of German mark. The reviewing court will take judicial notice of the depreciation in value of the German mark between March, 1917, and July, 1919. Appeal from Supreme Court, Appellate Division, First Department. Action by Leopold Zimmerman and others against the Roessler & Hasslacher Chemical Company. From an order of the Appellate Division (211 App. Div. 321, 207 N. Y. S. 370), which affirmed an order of the Special Term granting the motion of defendant for judgment on the pleadings, dismissing the complaint, plaintiffs appeal. Affirmed. The following question was certified: "Does the complaint herein state facts sufficient to constitute a cause of action?" Nathan L. Miller and David Paine, both of New York City, for appellants. Charles L. Woody and James M. Gifford, ZIMMERMAN et al. v. ROESSLER & HASS- both of New York City, for respondent. LACHER CHEMICAL CO. ANDREWS, J. The complaint alleges that on March 17, 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. 3,000,000 at the rate of 73% 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 31, 1917, and, time, payments are due here and abroad upon Where complaint alleged a sale of German marks for delivery during month of October, 1917, payment here and abroad not later than October 31, 1917, provided, should wireless be interrupted, payments to be due upon resump-in case wireless should be interrupted by that tion, and alleged that wireless was interrupted before date mentioned, but was re-established resumption of wireless." July, 1919, and that plaintiffs were ready and willing to deliver the marks, whereupon plaintiff asked performance of agreement, held that complaint did not state a cause of action. [1] 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. insert necessary terms which the parties have omitted. [5] 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 [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 $550,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 (Pers. Prop. Law, § 124, as added by Laws 1911, c. 571), 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. Personal Property Law (Cons. Laws, c. 41, § 144, as added by Laws 1911, c. 571). [4] 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's 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 The judgment appealed from must be affirmed, with costs, and the question certified answered in the negative. MCLAUGHLIN, CRANE, and LEHMAN, JJ., concur. HISCOCK, C. J., and CARDOZO, J., concur in result. POUND, J., absent. Judgment affirmed. (148 N.E.) nominal amount, plaintiff appeals by permis-, reason of war or for other causes the transit sion. Affirmed. Henry C. Burnstine and Samuel Greenbaum, both of New York City, for appellant. I. Maurice Wormser and Moses Altmann, both of New York City, for respondent. CARDOZO, J. Defendant agreed to sell and plaintiff to buy 200 cases of straw braid, delivery f. o. b. New York, shipment to be made from China during September, October, and November, 1919. November passed, and shipment was not made. The market price of the commodity in New York was high during November and December and for some time thereafter. Following the early part of February, 1920, it fell. The record does not contain the evidence, but there is a summary of its effect. By concession it warranted the jury in finding that the goods, if shipped on November 30, 1919, by the usual means of transportation contemplated by the parties, would have arrived in New York City in the latter part of February or in March, 1920. The trial judge instructed the jury that the damages were to be computed according to the market prices prevailing when delivery was due. The result was a verdict for little more than a nominal amount. The plaintiff insists that damages should have been computed according to the prices prevailing when shipment should have been made. By Personal Property Law (Consol. Laws, c. 41) 148, subd. 3: "Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the 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." cannot be measured within limits reasonably determinate. Such is not the case before us. Here, by concession, the verdict rendered by the jury is supported by the evidence. The precedents are meagre. Those that are close in analogy are in accord with our conclusion. Melachrino v. Nickoll [1920] 1 K. B. 693. The Situations, more or less cognate, have been They considered in the briefs of counsel. are mentioned only to exclude them. question is not here as to the application of the statute to contracts calling for shipment and delivery within a reasonable time without other specification. When such a case arises, there will be need to determine the rule of computation. So also the question is not here whether the plaintiff would have been at liberty at the end of November, 1919, to or forward contract, and make another charge the defendant with the overplus of cost. Cf. Williston, Sales, §§ 587, 588, 599. Nothing of the kind was done. The plaintiff has been awarded the value that would have come to him through the performance of the contract, if performance had followed according to its terms. Upon the record before us, he is entitled to no more. The judgment should be affirmed with costs. HISCOCK, C. J., and MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. Judgment affirmed. (240 N. Y. 511) STEPHEN PEABODY, JR., & CO., INC., v. TRAVELERS' INS. CO. The plaintiff insists that the time when delivery ought to be made cannot be deemed to be fixed under a contract, unless stated in so many words, though the time of shipment is prescribed and though data are supplied. by which the period of transportation can be measured. We think this is too narrow a reading of the meaning of the statute. Id certum est quod certum reddi potest. The plaintiff's reading, if it were to prevail, would apply to shipments from England as well as to those from China. It would apply to shipments by rail as well as to those by water. In that view, a contract involving carriage from New York to San Francisco, shipment to be made on a designated day, would leave the time of delivery indefinite, no matter how certain might be the duration of the transit. Cases may, indeed, be imagined where by (Court of Appeals of New York. July 15, 1925.) Insurance 237-Broker without right of action for company's breach of contract with customer. Whether contract by insurance company to furnish workmen's compensation insurance at fixed rate, notwithstanding later revision of rates, was legal or illegal, its breach of such contract and notice to insurer that it had not so agreed and that treatment of insured by the broker respecting such agreement was untegrity, gave no right of action to the broker, ethical, dishonest, and wanting in business inthough he might lose his commission, or suffer in his reputation for business acumen and judgment; the notice not being claimed to be libelous. 2. Insurance 138(1)-Contract to furnish fixed rates illegal and unenforceable. Contract by insurance company with broker and his customer to furnish workmen's compensation insurance for a fixed amount, notwithstanding any later revision of rates by rating board, held illegal and unenforceable in view of Insurance Law, § 67, and section 141 as amended by Laws 1922, c. 660, § 1, and Laws 1923, c. 436, § 1, under which insurance rates were to be approved by state insurance department, though Laws 1922, c. 660, § 3, and Laws 1923, c. 436, § 3, adding section 141-b, did not apply at that time. The difficulty with the plaintiff's situation here is not its novelty; it is its failure to suggest any wrong which the defendant has done to the plaintiff. When we speak of wrong, we recognize that the word has a much narrower and more limited meaning in jurisprudence than it has in morals. The defendant's conduct may have offended the plaintiff; it may have been mean or selfish; it may have been below the business standards maintained among insurance men and insurance companies; it may have deprived 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. Action by Stephen Peabody, Jr., & Co., Inc., against the Travelers' Insurance Company. From an order of the Appellate Division (210 App. Div. 261, 205 N. Y. S. 536) reversing a judgment of the Special Term, which denied defendant's motion to dismiss the amended complaint, plaintiff appeals. Affirmed. Moses & Singer, of New York City (Julian S. Eaton and Sam L. Cohen, both of New York City, of counsel), for appellant. William J. Moran, of New York City, for respondent. take hold of and redress, there is nothing to set the courts in motion. What is it that the plaintiff charges the defendant with having done? The New York Dock Company was a customer or client of the plaintiff's pertaining to workmen's compensation insurance. The defendant, as has been stated, was a Connecticut corporation authorized to carry on the business of such insurance in the state of New York. Workmen's compensation insurance is regulated by the law of this state. Section 67 of the Insurance Law (Cons. Laws, c. 28) 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 business, commenced an action against the defendant, a Connecticut corporation authorized to do business in the state of New York, which its attorney has been pleased to call an action analogous to interfering with trade or calling. On a previous appeal from a motion to strike out portions of the complaint, the Appellate Division (206 App. Div. 206, 200 N. Y. S. 612) required the plaintiff to serve an amended complaint separating its causes of action. It is the amended complaint which is before us. The Special Term denied the defendant's motion to dismiss the amended complaint as insufficient on the face thereof. The Appellate Division has reversed and granted the motion. Does this amended complaint set forth a cause of action? Counsel for the plaintiff, on the argument and in his brief, has assumed that the courts are reluctant to sustain a complaint setting forth a novel cause of action, or one that find no precedents in the books. Personally I have recognized no such reluctance on the part of any of the courts in recent years. If there be a wrong which the law recognizes as such, and which it is possible or practical for the courts to redress, the readiness to find a remedy has been manifested. New conditions and new circumstances are constantly arising. cept the state insurance fund as administered by the state Workmen's Compensation Commission, authorized to transact business in this state, which insures employers against liability for compensation under the Workmen's Compensation Law, shall file with the superintendent of insurance its classification of risks and premiums relating thereto, and any subsequent proposed classification of risks and premiums together with basis rates and schedules, if a sysshall take effect until the superintendent of intem of schedule rating be in use, none of which surance shall have approved the same as adequate for the risks to which they respectively apply. The superintendent of insurance may withdraw his approval of any premium rate or schedule made by any insurance corporation or association if, in his judgment, such premium rate or schedule is inadequate to provide the necessary reserves." The defendant insurance company was required to file with the superintendent of insurance its classification of risks and premiums, together with basis rates and schedules, if a system of schedule rating be in use. The premium and the basis rates and schedules must be approved by the superintendent of insurance. Section 141 of the Insurance Law recognizes the existence of rate-making associations, and provides for their supervision by the superintendent of insurance. Every such association is to file with the superintendent of insurance its schedule of rates whenever called for. |