Jungmann & Co., Inc. v. Atterbury Brothers, Inc.

New York Court of Appeals · Contracts

ContractsConditions PrecedentNoticeconditions precedentnotice of shipmentstrict compliancecontract performancecable notice

Facts

In February 1923, the plaintiff contracted to sell the defendant thirty tons of casein under a written contract providing: "Shipment: May-June from Europe. Advice of shipment to be made by cable immediately goods are dispatched." Fifteen tons were shipped on June 9, but no notice of shipment was given, and the defendant refused tender on June 20. The remaining fifteen tons were shipped on June 26, and the defendant received letters about that shipment, including one stating the goods would be shipped on the Magnolia, but the defendant did not receive advice of shipment by cable immediately after dispatch. When the plaintiff later tendered the full thirty tons, the defendant refused the tender.

Issue

May the seller recover on the contract when it failed to provide the contractually required advice of shipment by cable immediately after the goods were dispatched? More specifically, can other forms of notice suffice when the contract expressly requires notice by cable?

Rule

A plaintiff may not recover on a contract without proof that it has performed all conditions precedent required of it. Where the contract specifically requires advice of shipment by cable immediately after dispatch, failure to give that notice according to the contract bars recovery, even if other notice may have informed the other party of the shipment.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lena Ortiz, a grain broker in Toledo, contracts to sell 800 sacks of rye flour to Harbor Mill Supply, a fictional distributor in Pittsburgh. The written contract states: "Shipment during September. Advice of shipment to be sent by telegram immediately upon dispatch." Lena ships on September 12 and mails a detailed letter that same day, which Harbor Mill receives before the goods arrive.

If Harbor Mill refuses the shipment, is Lena most likely entitled to recover for breach?

Explanation. The seller may not recover without proving performance of all conditions precedent required by the contract. Where the parties specifically required advice of shipment by telegram immediately upon dispatch, a different form of notice does not satisfy the clause, even if it gave practical notice before delivery. The majority reasoned that courts may not substitute another kind of notice for the one the parties stipulated to. (Derived from Jungmann & Co., Inc. v. Atterbury Brothers, Inc. (n.d.).)