Story Case

The Turkish Government, through its agent, made an agreement with the American Electrical Company by which the electrical company undertook to furnish the Turkish Government with the electric appliances and fixtures for two thousand contact mines to be used in the Bosphorus. The appliances were to be delivered in April, 1915. Before the middle of March, Turkey's ports were completely blockaded, and her agents, therefore, cancelled the order for the fixtures. On March 16, the electrical company filed suit, and, at the same time, levied attachment upon Turkish funds deposited with a New York City banking company. The Ottoman agents insisted that the time for performance had not arrived; that the delivery called for in the contract had not been tendered, and that, therefore, the action was premature. Will this contention be supported in court?

Ruling Court Case. Windmuller Vs. Pope, Volume 109 New York Reports, Page 675

In January, 1880, the parties to this action entered into a contract for the sale by Windmuller and the purchase by Pope of about 1,200 tons of old iron, at thirty-five dollars per ton. Their contract was to be performed at any time from May 1 to July 15. On, or before June 12, Pope notified "Windmuller that he would not receive or pay for the iron, or any part of it. Windmuller, thereupon, sold the iron at a loss, and brought this action immediately. Pope contended that Windmuller should have tendered delivery as late as July 15, in order to recover against him.

In the opinion of the court, it was said: "We think no error is presented upon the record, since Pope on the twelfth of June notified Windmuller that he would not receive the iron rails or pay for them, and informed him on the next day that if he brought the iron to New York, he would do so at his peril. Windmuller was justified in treating the contract as broken by Pope at that time, and was entitled to bring this action immediately for the breach, without tendering the delivery of the iron, or awaiting the expiration of the period of performance fixed by the contract." Judgment was given for Windmuller.

Ruling Law. Story Case Answer

As between vendor and vendee, delivery of possession may not be required to pass title. But if the vendor agrees to deliver, as is usually the case, he must comply with the agreement, in order to hold the buyer liable. However, if the buyer before time for delivery, announces that he will not accept, the seller is under no duty to prepare for delivery, but may sue the buyer at once.

Thus, in the Story Case, the American Electric Company may sue on the contract of sale, though the time for delivery had not arrived. Delivery or tender was not necessary, since the agents had made performance impossible.