Feld v. Henry S. Levy & Sons, Inc.

Facts

Plaintiff, who operates Crushed Toast Company, and Defendant, who is in the wholesale bread baking business, entered into a contract in which Defendant agreed to sell and Plaintiff to purchase all bread crumbs produced by the Seller for a certain period of time. The agreement was deemed to automatically renew for successive renewal periods of one year with the right of either party to terminate by giving not less than sixth months. A faithful performance bond was delivered by Plaintiff at inception of the contractual relationship. A substantial quantity of bread crumbs was sold by Defendant to Plaintiff but Defendant stopped producing the bread crumbs. Evidence demonstrated that it was uneconomical for the Defendant to continue operating his oven, however, no steps were taken to acquire another oven. The oven was destroyed and Defendant used the area as a computer room. Defendant indicated to the Plaintiff, that the Plaintiff would resume bread crumb production if the contract price of six cents per pound were changed to seven cents. The Special Term denied Plaintiff’s Motion for Summary Judgment on the issue of liability and rejected Defendant’s request for a summary judgment of dismissal. Both parties appealed from a judgment of the Appellate Division affirming the Special Term’s holding.