be disposed of said steel company might suffer great loss and consequent breach of said contracts. It is then ordered that the receivers be * "authorized, empowered and directed, in their per ton. These two commissions amounted in the aggregate to ten cents per ton, and thus far were authorized to be paid to separate parties. Then the authority thus given to the receivers was outlined in another and alternative clause which permitted them to make a contract with one and the same person both for selling and financing the sale of the ore, and this clause it seems to us indicates clearly that all of the authority intended to be given was limited to the year 1908. It provides that in lieu of making contracts with two parties "the said receivers may in their discretion enter into a contract or contracts with responsible parties to sell, dispose of, transport and finance operations necessary for the sale and disposal of the said ore to be taken by the New York State Steel Company under said contract, in and for the season or years of 1908, at a cost of not to exceed ten cents per ton." We do not see how any language much more plainly could indicate that the receivers were limited to incurring expenses for the year 1908, and we repeat the only authority which was conferred upon them by this order was that to be found in permission to make arrangements to sell and market ore to be received under the contract. If that permission was limited to the year 1908, the authority to assume the contract was limited to 1908. If this last provision was limited to the year 1908, manifestly it must have been intended to limit the preceding clauses to the same year. [5] The next question which arises is the one whether the defendant was compelled to deliver ore under its contract to the receivers, even though they were authorized to and did assume the contract. This question is that the execution and faithful performance by the New York State Steel Company of the contract was guaranteed by Mr. Kellogg, who was subsequently appointed one of the receivers. If the defendant by deliveries of ore to the receivers would have lost the benefit of this guaranty, of course it would not be required to make them. We think that this would have been the result, and that for this reason defendant was excused from delivery. [4] When we analyze these provisions of the order we see at once that there is not any general authority to the receivers to assume the contracts, followed by subsidiary clauses permitting them to dispose of the ore to be received under the contracts through the agency of brokers. The only authority to assume the contracts is found in what naturally would have been such subsidiary provisions, namely, an authority to make contracts with brokers to dispose of ore, and therefore the assumption of the contract is governed and limited by the extent of this authorization to deal with brokers. It seems to us that the provision giving pow-precipitated by the fact already referred to er to the receivers to make a contract with brokers to dispose of ore "on the best possible terms, not to exceed, however, a commission of seven cents per ton on the sale of said contract, during the season or year of 1908," was one which simply authorized them to adopt so much of the contract with defendant as related to delivery of ore during the year 1908, and that it did not touch or permit any assumption of the contract beyond that year. It is argued that the limitation to the year of 1908 related only to the commissions which the receivers were authorized to pay and did not in any manner limit or affect the assumption of the contract by the receivers for the other years. We do not think that this is a fair or rea-ed for the purpose of conserving the rights sonable construction of the order, even if based on the particular clause to which we have referred. But if this clause by itself is ambiguous, we think such ambiguity is eliminated by a subsequent provision. In addition to authorizing the payment of the commission for the sale of ore the receivers were, as stated, also authorized to pay a commission, for financing the expense of handling, The contract made by defendant was for the benefit of and enforceable by the steel company, "its successors and assigns." The receivers were mere custodians subject to the orders of the court. They were appoint of everybody interested in the property of the steel company. It is conceded by the respondents that they were not "assigns" of the steel company, and it is not claimed as it could not well be that they were "successors" of the latter. That latter term as used in the contract does not describe any such transference from a corporation of its rights, property, and privileges as was effected by ordinarily in the case of a corporation, another corporation which by a process of amalgamation, consolidation, or duly authorized legal succession has become invested with the rights and has assumed the burdens of the first corporation. Thus it would have happened that if the defendant had delivered ore to the receivers it would not have been delivering to the original promisee, its successors or assigns, and under the terms of the contract and of the guaranty we fail to see how it could have enforced liability against the guarantor. ways. [6] It is, however, suggested that it would have or might have been relieved from difficulty in this respect in either one of two It is said in the first place that if delivering to the receivers it might have insisted upon cash payment, and thereby have avoided the necessity of any resort to the responsibility of its guarantor. While Pardee v. Kanady, 100 N. Y. 121, 2 N. E. 885, sustains the proposition that a vendor under such a contract as this might demand cash instead of submitting to a term of credit, we do not think that that proposition aids plaintiff here. The receivers demanded delivery of ore under the contract which extended terms of credit and without any offer to pay cash on delivery. We do not think that the defendant was obligated to attempt to give to the contract a new construction or to ac commodate the demands of the receivers by introducing into the contract new terms of delivery in order to offset the loss of its surety. It had a right to stand on its contract. It was not bound to give up its guarantor and find some other substitute for him which might prevent loss. [7] It is in the next place urged that the guarantor had estopped himself from raising any question in respect of deliveries which might be made to the receivers. The facts upon which this claim is based are brief. In the course of its correspondence with its agents, Hanna & Co., the defendant requested a copy of the order under which the receivers claimed they were authorized to demand delivery of ore, and also called attention to the guaranty by Mr. Kellogg, and said: "Before making delivery we will require a letter from him stating that his guaranty applies as well to deliveries made to the receivers under order of the court as to deliveries made under the contract to the New York State Steel Company itself." In answer to this a letter was received signed in the name of the steel company by Mr. Kellogg and one of the other receivers stating: "Your letter requires two things-a letter from Mr. Spencer Kellogg, and a copy of the order of the court. A copy of the order of the court we will be glad to furnish you. We cannot compel Mr. Kellogg to write any further letters or give any guarantees. We do, however, by this letter, demand from you the performance of the contract.". We fail to discover in these facts anything which would have estopped Mr. Kellogg from denying the legality under his guaranty of deliveries to the receivers. He was acting in a dual capacity. As one of the receivers, properly enough, he was trying to secure for the steel company from the defendant under its contract what he thought was for the benefit of the former. If this had been all of the transaction it is possible that some elements of estoppel might have been present. But it was not all. He occupied the other position of guarantor, and when the defendant naturally enough under the circumstances wanted further assurances from him as such covering deliveries to the receivers, he declined to give the same. to the defendant that while as receiver he intended to make it deliver ore if he could, as guarantor he proposed to stand on his rights and be bound by the terms of his contract as He in effect said it had been written. This created no es toppel. An estoppel arises when one party has so induced another to act in reliance upon his conduct or words that he will not be permitted to change his attitude, even though it be different than that which he did nothing of this kind. As receiver he inmight originally have assumed. Mr. Kellogg sisted that defendant was bound to deliver ore to him and his associates, but he qualified this insistence so far as his guaranty was concerned by notice that he would stand on his contract as written. There was nothing misleading about this. The effect of it all was that the defendant was relegated to its contracts and left to determine what they meant. The principles of estoppel as applied to such a case as this are reasonably well defined and plain, and we ought not to substitute for them some hazy and indefinite notions whereby in the supposed interests of justice a convenient theory of estoppel is predicated upon facts which do not fairly sustain it. [8] The final question is the one whether assuming that the defendant committed a breach of its contract a right of action to recover damages therefor was ever assigned to these plaintiffs, and again we feel compelled to answer the question like the others unfavorably to the plaintiffs. Defendant's breach of contract, if any, was committed August 3, 1908. October 12th of that year an order was obtained by the receivers authorizing them to make an assignment to the plaintiffs. The long recitals in this order, so far as material at all, only refer to the contracts which had been made with the defendant and other corporations for the delivery of ore. There is no recital of the fact that there had been any breach by defendant of its contract as now claimed. The order provides that the receivers may assign to plaintiffs as trustee the contract between the defendant and the New York Steel Company, such assignment to be made "pur- tive profits to be derived therefrom to the suant to the terms and provisions of the agreement in writing dated August 28, 1908, between the New York State Steel Company and M. A. Hanna & Co. and various creditors and materialmen." As a matter of fact it does not appear that any assignment was ever executed by the receivers, but it has been assumed that the order permitting such a one and the assignment made by the steel company to plaintiffs as trustee would be effective, if otherwise sufficient, to transfer a right of action for defendant's alleged breach. | By the terms of the order we are referred to such latter agreement or assignment by the steel company for the purpose of determining the question now being considered. liquidation" of indebtedness, and that, therefore the steel company does assign "all of its right, title and interest in, to and under the aforesaid contracts," and that "the said trustee agrees to accept an assignment or assignments of the said contract," and "to sell and dispose of the ores to be delivered under the said contract," and to advance moneys and so forth for the purpose of handling, shipping, and marketing the ores, and the trustee is to "retain the net proceeds derived from the sale of said ores" until a certain amount shall have been accumulated as an indemnity fund, and as often as said trustee has in its possession "net proceeds derived from the sale of said ores" aggregating a certain sum it is to make an accounting therefor; also that the steel company in case it needs the same is to have the privilege of purchasing from the trustee ore at a certain price, and that all sales of the said ore are to be subject to the In approaching the interpretation of the instrument and as aiding somewhat in its construction we ought again to bear in mind certain surrounding circumstances. The first one thus to be noticed is that if a right of ac-approval of the trustee and the representation existed in behalf of the receivers for a breach by defendant of its contract, there was no object whatever in assigning it to plaintiffs for enforcement. The enforcement of such a right involved at most simply an action, and this the receivers were as fully qualified and able to bring as any onė. The second consideration is that the subject which seems to have troubled the receivers at all times was the disposition to be made of the large amount of ore which would be put on them if they adopted these contracts and which they evidently feared they could not handle, and this danger they were anxious to avoid by arranging with some one else to take the ore off their hands and leave them the profit which existed between the contract and going prices for ore. tive of the steel company. And finally as very significant it is provided that after certain payments shall have been made by the trustee, including claims of creditors, "the overplus if any there be * arising from the sale of the ore to be delivered under the aforesaid contract" shall be paid to the steel company. Certainly, if it had been intended that plaintiffs as trustees should collect the sum of $22,000 damages for a breach of contract, the provision for the application of the moneys which might come in their hands would not have omitted all reference to such damages. It seems to us that the proposition that such an instrument prepared under the circumstances we have adverted to was intended to transfer to the plaintiffs the present cause of action can scarcely be brought within the limits of reasonable debate. In accordance with these views we think that the judgment must be reversed, and, since the facts cannot be changed on another trial, the complaint should be dismissed, with costs to the defendant in all courts. CHASE, COLLIN, HOGAN, and McLAUGHLIN, JJ., POUND and concur. CRANE, JJ., dissent. When we read the contract of August 28, 1908, which is relied on as an assignment, it seems very clear that it was intended to meet the second consideration mentioned, and that there was no thought of including within its terms an assignment of any right of action for an existing breach of contract. There are not found within its provisions any specific words which include such a transfer. Equally there are no words which upon a consideration of the entire instrument by fair implication indicate an intent to make such a one. The entire purpose of the instrument indicated repeatedly by various phrases and provisions was to transfer to these plaintiffs the right and responsibility of disposing FULTON v. CANNO et al. of the ore which might thereafter be deliv- (Court of Appeals of New York. Jan. 8, 1918.) ered under the contracts and which the re- DAMAGES 62(4)—BREACH-REDUCTION OF ceivers feared they could not handle. The DAMAGES. agreement after reference to the various con- skimmed milk, defendants installed vats in plainWhere, pursuant to contract for purchase of tracts recites that "there is a prospective tiff's creamery to receive it and employed a profit in the said contracts for the said ore," cheesemaker to manufacture it, and thereafter and that the steel company is willing to asnotified plaintiff that they would no longer comsign such contracts "to said trustee [plain-out making some effort to reduce loss, permit ply with the contract, plaintiff could not, withtiffs] for the purpose of devoting the prospec- the milk to become a total loss, and then hold (222 N. Y. 189) defendants liable for the contract price, as plaintiff knew after notice that the cheesemaker had no authority to receive the milk, although de fendant's vats were not removed. Appeal from Supreme Court, Appellate Division, Third Department. Action by Arlington P. Fulton against Max Canno and others. From a judgment of the Appellate Division (162 App. Div. 203, 147 N. Y. Supp. 721), affirming by divided court a judgment for plaintiff, defendants appeal. Judgment modified. Ellsworth Baker, of Hurleyville, for appellants. John D. Lyons, of Monticello, for respondent. Plaintiff received both letters-just when does not appear-but it may be assumed from his testimony not later than the 22d. He paid no attention to them, and until the 15th of August following continued to deliver the milk into the vats which had been furnished by defendants and it there remained, no cheese being made from it, until it was discharged upon the ground or given away. He made no effort to sell the milk after receipt of the letters, though he had an opportunity to do so. He brought this action to recover the contract price of the milk delivered, upon the theory that the contract was in force, since the defendants had their vats in his creamery and Cole there representing them. He had a verdict for the amount claimed, and from the judgment entered thereon defendants appeal tices dissenting, affirmed the judgment and an appeal was then taken to this court. The plaintiff knew, when he received the letters, that the defendants had rescinded the contract; that Cole thereafter had no authority to receive the milk, and having this knowledge it was his duty to use reasonable effort to reduce the loss. He could not, without making some effort in this direction, per hold the defendants liable for the contract price. Dustan v. McAndrew, 44 N. Y. 72; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415; 13 Cyc. 71. MCLAUGHLIN, J. In November, 1911, the parties to this action entered into a contract by which the plaintiff, the owner of a cream-ed. The Appellate Division, two of the jusery, agreed to sell to the defendants, and they agreed to purchase, for one year beginning December 1, 1911, and ending December 1, 1912, skimmed milk at 23 cents per can of 40 quarts. Defendants purchased the milk for the purpose of manufacturing it into pot cheese at their factory, located some distance from the plaintiff's creamery. Shortly after its execution the contract was modified, to obviate the transportation of the milk, by per-mit the milk to become a total loss, and then mitting defendants to install in the creamery the vats and fixtures necessary for there receiving the milk and making the cheese. In consideration of such modification the defendants agreed to pay 25 instead of 23 cents a The defendants paid for the milk delivered can for the milk. The fixtures and vats were to the 16th of June, and plaintiff was entitled installed, and defendants then put into the to recover for deliveries from that time until creamery a cheesemaker by the name of Mår- tne letters were received. Plaintiff testified golin, who made the cheese until some time that he delivered from the 16th of June to in February following, when he left, having the 1st of July, 493 cans and 15 quarts, previously employed for defendants a man which, at the contract price amounted to by the name of Cole in his place. Cole there- $123.25. From the course of dealings between after continued to make the cheese until the parties it may be assumed that the averabout the 21st of June, when one of the de-age daily delivery during that time was the fendants had an interview with the plaintiff same. The value of the milk delivered, thereand notified him that the cheese which was fore, from the 16th of June until the receipt being made was not satisfactory. There then of the letters, was $57.52. It was conceded at arose a dispute as to whose duty it was to the trial, or the fact was not disputed, that make the cheese-defendants insisting that there was due the plaintiff for other items from the 1st of April, under the contract, it $14.28, which, added to the $57.52, is the was the plaintiff's, and the plaintiff insisting amount for which the plaintiff should have he had nothing to do with the making of the had a verdict. cheese; that he was simply obligated to deliver the milk at the creamery to defendants. As a result of this interview the defendants, on the 21st of June, wrote the plaintiff two letters, in one of which they said: "If you make any further shipments same will be returned to you at your expense;" and in the other, "I beg to call your attention to the fact that * * * we will not be responsible any further under our contract until you notify Mr. Canno to call at your creamery to instruct your butter maker how to make the pot cheese. I beg to notify you that you discontinue the use of our fixtures and cans." The other errors alleged have been examined, but they do not affect the validity of the judgment. The judgment appealed from, therefore, should be modified, by reducing the amount of the damage to $71.80, with interest from December 3, 1913, and, as thus modified, affirmed, without costs to either party in this court or the Appellate Division. HISCOCK, C. J., and CHASE, COLLIN, HOGAN, POUND, and CRANE, JJ., concur. Judgment accordingly. (222 N. Y. 263) JECTION. 719(4) Where the commissioner of docks reserved the right to reject bids for space thereon, if he deemed it for the best interest of the city, the auctioneer's sale was only conditional, and the commissioner had a reasonable time to accept or reject, notwithstanding that the highest bidder complied with all the conditions of the sale; the commissioner having authority to impose reasonable conditions. 2. MUNICIPAL CORPORATIONS 719(4) DOCKS-SALE OF PRIVILEGES-TIME FOR REJECTING BIDS-QUESTION OF FACT. Whether a city commissioner of docks, who auctioned off dock space on April 29th and waited until May 1st before rejecting, acted within a reasonable time in rejecting the bid, was a ques tion of fact. docks and ferries at the time of the sale the terms of sale. The commissioner of The defendant was the highest bidder at such sale, having bid $15,500 per annum, and the permit or license was awarded and knocked down to it by the auctioneer. Immediately thereafter the defendant's representative paid to the auctioneer his fee of $50 and at the office of the cashier of the department paid $3,887.50, and received a receipt therefor in which it is stated: "For privileges at Manhattan terminal, S. I. ferry for three months due this day in the sum of $3,887.50 payable in advance in accordance with the terms of permit." On the following day the defendant was notified by the commissioner that he intended to reject the bid made by it, and on May 1st, before the expiration of the term under which the defendant was then occupying a portion of the dock property, it was served with a notice which stated among other Appeal from Supreme Court, Appellate Di-things: vision, First Department. Action by the City of New York against the Union News Company. From a judgment of the Appellate Division of the Supreme Court (154 N. Y. Supp. 638), affirming a judgment of the Trial Term for defendant, plaintiff appeals. Affirmed. On April 26, 1912, the city of New York, through its commissioner of docks, granted to the defendant a permit or license to sell books, newspapers, and other articles therein described for the term of one year from 12 o'clock noon on May 1, 1912, at the municipal ferry terminal of the Staten Island ferry in the borough of Manhattan, at an annual rental of $23,000. Before the end of the year as therein provided negotiations were had relating to a renewal of the permit or license for the year commencing May 1, 1913, but a new agreement was not entered into because the parties failed to agree upon the rental to be paid therefor. The commissioner of docks advertised the permit or license to be let for two years to the highest bidder on April 29, 1913. At such sale the terms thereof were read at length. Among other things the terms of sale provided that the successful bidder would be required to (a) pay the auctioneer's fee of $50; (b) enter into a written agreement to comply with the terms of sale; (c) pay to the department of "The bid submitted by you on April 29, 1913, of $15,500 for stand privileges at the Manhattan terminal of the Staten Island ferry is hereby rejected. Your present permit expires at 12 o'clock noon to-day. Permission is hereby granted you to remain over at the pleasure of the commissioner of docks at the same rate as you have heretofore been paying during the past year namely at the rate of $23,000 per annum. of the offer is herewith returned. We will imThe cash, $3,887.50, deposited by you at the time mediately notify the auctioneer to return the money paid by you to him, $50." The defendant immediately answered in writing in which among other things it stated: "Your favor of May 1st at hand in which you attempt to reject the contract entered into between Union News Company and the city of New York on April 29, 1913, for stand privileges at the Manhattan terminal of the Staten Island ferry at the rate of $15,500 per year for a term of two years. We beg to inform you that the Union News Company declines to remain over at the pleasure of the commissioner of docks at the same rate as we have heretofore been paying during the past year, namely, at the rate of $23,000 per annum. * * We herewith tender back to you the sum of $3,887.50 left this morning at our office which we decline to accept, the same having been heretofore paid to you as stated in this letter, receipt for which, as outlined above, is now in our possession." The defendant has remained in possession of that part of the dock mentioned in the permit or license, and on the 1st of August |