The claimant's application to the Superior Court for allowance of its claim was denied on the ground, as stated in the memorandum of decision, that there had been no anticipatory breach of any of the contracts before the appointment of the receiver, and that therefore claimant was bound to perform or offer to perform, by making or tendering delivery, before it could put the defendant or the receiver in the wrong. The findings of fact bearing on the conduct of the parties have been stated, and they justify the comment of the trial court that because of the chaotic condition of the market in the late summer and early fall of 1920, both parties appear to have felt that indefiniteness of claim was the best policy.
It is clear, however, that after the unsuccessful attempt of the defendant, in August, 1920, to induce the claimant to consent to a cancellation of the contracts, both parties treated them as open contracts, postponed in performance but continuing in force. In this connection it is to be observed that none of these contracts is expressly limited in time of performance *Page 431 to the month specified for delivery. The phrase "or as soon thereafter as possible" admits of a somewhat indefinite extension of the time for delivery, and the parties seem to have put that practical construction on it; the claimant by insisting at all times that the defendant must accept, and the defendant by never refusing to perform. There is nothing in the record which suggests that the defendant ever claimed that the contracts for August and September delivery, or as soon thereafter as possible, had expired by limitation of time before the receiver was appointed. Whether the defendant could successfully make such a claim while its assortments under the contracts remained unrevoked, is a question we need not answer. On this state of the facts, we think the trial court was right in making no distinction between the contracts, and in treating all of them on the same basis as open executory contracts at the date of the receivership.
Such being the status of the contracts when the receiver was appointed, the claimant was not required thereafter to offer delivery either to the receiver or to the defendant. Under the contract for March delivery no delivery was then possible, for the time had not yet arrived. Aside from that, the defendant had no right to demand performance by the receiver. He was not a party to the contracts, unless and until he elected to make himself a party by adopting them for the benefit of the estate; and if he had elected to do so, it would have been his duty to make the first move by so notifying the claimant. Nor was the claimant bound to offer performance to the defendant, for the receivership had totally disabled the defendant from performance, and the offer would have been futile.
On the merits the case is controlled by Napier v.Peoples Stores Co., ante, p. 414, 120 A. 295, in which we have held that a receivership of a corporation *Page 432 operates as a breach of its open executory contracts, which entitles the other parties to file and prove claims for damages for the breach.
There is error, the judgment is set aside, and the cause remanded with direction to allow the claim.
In this opinion the other judges concurred, except WEBB, J., who dissented.