W. R. Grace & Company, Plaintiff, v. Jules Maes & Company, Inc., Defendant

W. R. Grace & Company, Plaintiff, v. Jules Maes & Company, Inc., Defendant. First Department, July 2, 1920. Sales — contract to deliver certain percentage of goods ordered, construed — when seller entitled to recover. Under a written contract for the purchase of “ About Ten thousand (10,000) bags ” of coffee, and further providing that “ Coffee must be actually delivered to within five (5%) per cent, more or less of the quantity sold,” a delivery of 9,500 bags of coffee is a fulfillment of the contract and the seller is entitled to recover. Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Harold J. Roig, for the plaintiff. Howard R. Bayne, for the defendant. [MAJORITY — Dowling, J.:] Dowling, J.: On November 26, 1918, plaintiff and defendant’s predecessor entered into a written contract for the purchase of “About Ten thousand (10,000) bags of Good Washed Guatemala Coffee at $19.25 per 100 lbs. Spanish. Net shipping weights F.O.B. Champerico or San Jose de Guat.” The contract contained a clause, “ Coffee must be actuálly delivered to within five (5%) per cent, more or less of the quantity sold.” Defendant’s predecessor bought from A. Rosenthal & Sons 10,000 bags of coffee of the kind described in the contract, to be delivered in Guatemala, upon which it relied to execute the contract with plaintiff, which knew nothing about this agreement. A. Rosenthal & Sons delivered only 9,344 bags of coffee under the contract and refused to deliver any more. These 9,344 bags of coffee defendant delivered to plaintiff and settled with it for 156 bags, at the difference between the contract price and the market price at the time delivery was due. Plaintiff claims that defendant is obliged under the contract between them to deliver 500 bags of coffee, making the full total of 10,000 bags, while defendant claims that it has fulfilled its contract by delivering 9,500 bags. I am of the opinion that defendant is correct in its contention. The contract was not for a fixed and definite number of bags of coffee but for “about” 10,000 bags. What this means is to be found by reference to the clause that “ Coffee must be actually delivered to within five (5%) per cent, more or less of the quantity sold.” This permitted a valid delivery to be made between the limit of 9,400 to 10,500 bags. Defendant has delivered or settled for 9,500 bags of coffee and has, therefore; fulfilled its contract. Judgment is directed for defendant, without costs. Clarke, P. J., SmitiI, Page and Greenbatjm, JJ., concur. Judgment ordered for defendant, without costs. Settle order on notice.