Jungmann & Co., Inc. v. Atterbury Bros., Inc. – Case Brief
Jungmann & Co., Inc. v. Atterbury Bros., Inc., 249 N.Y. 119, 163 N.E. 123 (N.Y. 1928).
Facts: Jungmann (P) entered into a written contract to sell thirty tons of casein to Atterbury Brothers (D). The contract stipulated: “Shipment: May-June from Europe. Advice of shipment to be made by cable immediately goods are dispatched.” Jungmann shipped fifteen tons of casein on June 9th but did not give notice to Atterbury. On June 21st D informed P that it refused to accept the shipment on the grounds that there had been no May delivery, and that P did not give notice of the June shipment.
P shipped the remaining order on June 26th but did not give D notice by cable; it did however send D notice by letter on June 23rd. D refused to accept the shipment and P sued for breach of contract.
Issue: May a plaintiff recover for breach of contract without proof that it performed all required conditions precedent?
Holding and Rule: No. A plaintiff may not recover for breach of contract without proof that it has performed all required conditions precedent.
The parties agreed to the contract clause which requiring notice of shipment by cable and P was obligated under its contract to see that D obtained advice of shipment by cable. The court held that P failed to do so and may not recover upon its contract without proof that it has performed all conditions precedent required of it. P was barred from recovery for having failed to give notice per the terms of the contract.
Disposition: For D.
Notes: In this case, the court held that all conditions precedent must be excused for the plaintiff to be entitled to relief. An absolute duty to perform is then imposed on the other party. The court’s ruling in this case is contrary to the more common tendency for courts to adopt rules that lean in favor of breach rather than unenforceability of contracts.
See Also:
Peacock Construction Co. v. Modern Air Conditioning