New York County NyArchives Court.....Rutty, William Vs. Consolidated Fruit Jar Co 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

WILLIAM H. RUTTY, Respondent, v. CONSOLIDATED FRUIT JAR COMPANY, Appellant.

Breach of contract for the manufacture of goods — sufficiency of the allegations 
of the complaint as to a demand, and an offer to receive and to pay for them — 
conforming the pleading to the proof

In an action, brought to recover damages for a breach of contract, whereby the 
defendant agreed to manufacture for the plaintiff certain glove clasps, to be 
delivered from January 1, 1884, at twenty-nine cents per gross, it is necessary 
for the plaintiff to allege in his complaint and show that during the lifetime 
of the contract he demanded the goods, or that he notified the plaintiff of his 
willingness to receive and pay for the same.

Where no place of delivery is mentioned in the contract the presumption is that 
the goods are to be delivered at the place of manufacture, and in order that the 
defendant should be put in default it is necessary that a demand or an offer to 
receive the goods, and to pay for the same, be made within the period fixed by 
the contract.

The pleadings cannot be conformed to the proof, where an objection is taken in 
due form to the sufficiency of the complaint, which sets forth the cause of 
action. It is only in a case in which no objection is taken, or where, after the 
evidence has been admitted without objection, an objection to the complaint is 
taken at the end of the trial, that the court can make an order amending the 
pleading in such wise as to make it conform to the proof.

Appeal from a judgment in favor of the plaintiff, entered upon the report of a 
referee, in the office of the clerk of the county of New York on the 12th day of 
January, 1889, for $3,996.07 damages and costs.

L. A. Fuller, for the appellant.

J. Eustis, for the respondent.

Van Brunt, P. J.:

This action was brought to recover damages for the breach of a contract for the 
manufacture of certain merchandise. The allegations of the complaint, in brief, 
are that in November, 1883, the defendant entered into a contract with the 
plaintiff, whereby it agreed to manufacture for the plaintiff 10,000 gross of 
Rutty's button-glove clasps, as per sample, 500 gross per week to be delivered 
from January 1, 1884, at twenty-nine cents per gross; that defendant did not 
perform said contract on its part, but wholly neglected the same, in that no 
clasps were made and delivered under said contract until the end of February, 
1884, and then only a few gross and those incomplete; that from time to time 
until the month of February, 1885, when the defendant refused to deliver any 
more clasps, plaintiff received only 700 gross under said contract, and many of 
those were imperfect, and that, in consequence of defendant's failure to 
perform, the plaintiff lost the sale and profit of those goods, to the 
plaintiff's damage $12,000. For a second cause of action the plaintiff alleges, 
reiterating all the previous allegations, that when the defendant threw up the 
contract in February, 1885, the plaintiff employed other parties to make said 
clasps, on notice to the defendant, and had said clasps made by different 
parties at an expense exceeding the contract-price to the amount of $3,129.05. 
And for a third cause of action the plaintiff alleges the delivery of certain 
tools mentioned and brass to use in making the clasps of the value of $1,216.80, 
which were destroyed by fire when in defendant's possession. The answer was 
substantially a general denial. The plaintiff gave evidence tending to prove the 
allegations of the complaint, and the defendant gave evidence to the contrary.

Upon the termination of the evidence the defendant moved to dismiss upon the 
ground, amongst others, that the complaint did not allege that the plaintiff 
demanded the goods during the lifetime of the contract; secondly, that it did 
not allege that the plaintiff had tendered the price nor that he was able or 
ready to receive the goods, and that the complaint did not allege that the 
defendant refused to complete the contract until February, 1885, after the 
contract had expired. The referee overruled these objections and found the 
making of the contract; that the plaintiff extended from time to time the 
delivery of the clasps, and that some few of the clasps were delivered under the 
contract, and that after the refusal and failure of the defendant to complete 
the contract the plaintiff procured the balance of the clasps at an expense, 
over and above the amount of the contract, of $3,062.08, and for this amount 
gave judgment, and for another small item which it is not necessary to mention.

The claim is now made that the overruling of the motion to dismiss the complaint 
was error. In this it seems to us the appellant is clearly right. In the case of 
Pope v. Terre Haute Car Manufacturing Company (107 N. Y., 61), it was distinctly 
held that the promise of the defendants to manufacture, sell and deliver the 
goods, and of the plaintiff to receive and pay therefor, were mutual and 
concurrent; and that neither party can maintain an action against the other for 
a breach of that contract without proving performance on his part. This the 
plaintiff has utterly failed to do. He has not alleged in his complaint any 
demand for the goods or any notice of willingness, upon his part, to receive and 
pay therefor. In the contract no place of delivery was mentioned, and the 
presumption is that the goods were to be delivered at the place of manufacture, 
and in order that the defendant should be put in default, it was necessary, 
under the rule laid down by this decision, that a demand should be made and an 
offer to receive the goods and pay for the same tendered. If the defendants were 
suing because the plaintiff had failed to receive and pay for the goods, it 
would undoubtedly have been necessary for them to have established that they 
either delivered or offered to deliver the merchandise within the time mentioned 
by the contract. If it would have been necessary for the defendants to prove 
this to recover upon the contract, it was certainly equally incumbent upon the 
plaintiff to prove that he had either demanded or had signified his willingness 
to receive and pay for the merchandise during the life of the contract before he 
could recover damages for any breach.

There is no allegation of a demand until after the expiration of the contract, 
and there is no allegation in the complaint of an extension of the contract, and 
although this was found by the referee, yet still, in the face of the motion to 
dismiss because of its want of allegation, he seems to have thought he had the 
power to give judgment according to the evidence, notwithstanding that no 
amendment of the pleading was asked for or made. The authority cited shows that 
such practice cannot prevail, and that if an objection to a defect in the 
pleading is taken before the case is submitted, the weakness permeates the whole 
case, and unless the necessary allegations are present a recovery cannot be had. 
It is true that in the case cited the motion was made on the opening of the 
case. But the right to make such a motion exists until the case is actually 
submitted for decision. The pleadings cannot be conformed to the proof where 
there is an objection taken in due time to the sufficiency of the pleading which 
sets forth the cause of action. It is only where no objection is taken or where, 
if at the end of the case, evidence has been admitted without objection, the 
objection is taken, the court, makes an order amending the pleadings to conform 
to the proof. But no recovery can be had unless the pleadings contain the 
necessary allegations. As already stated, there were no allegations showing the 
extension of this contract, and consequently the referee had no power to make 
any such finding for the purpose of sustaining a recovery in view of the 
objection as to the weakness of the complaint. That the contract had expired by 
the terms of the complaint at the time of the making of the demand was 
distinctly taken as one of the grounds upon which a dismissal was asked. In the 
face of this objection the referee had no power to discuss the question of the 
extension of this contract, as to which nothing was alleged, as though no such 
objection had been taken.

We are of opinion, therefore, that the failure to allege this extension, the 
failure to allege willingness to receive and pay for the merchandise during the 
life of the contract, and, therefore, of willingness to perform, upon the part 
of the plaintiff, was a fatal defect and precludes a recovery upon the complaint 
as it now stands.

The judgment must be reversed and a new trial ordered, with costs to appellant 
to abide event.

Cullen, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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