*3869 The petitioner and another corporation entered into a contract whereby the petitioner agreed to sell to the other corporation and the other corporation agreed to buy from the petitioner, a certain quantity of scrap, steel and iron, deliveries to be made and accepted in 1920. After the contract had been partly performed the purchaser refused to accept further deliveries. In December, 1920, the petitioner and the other party to the contract held a conference with a view to settling their differences, but nothing definite was agreed upon at that time. On January 3, 1921, the petitioner received from the other party a letter dated December 31, 1920, enclosing orders for the exact quantity of steel and iron remaining unaccepted under the original contract, but at a reduced price, together with trade acceptances for $89,100. The orders and acceptances were accepted by the petitioner by letter dated January 6, 1921. Held, that there was a new contract made by the petitioner and the other corporation in 1921 and that the amount of the trade acceptances did not constitute income to the petitioner in 1920.
*63 This is a proceeding for the redetermination of deficiencies in income and profits taxes asserted by the respondent for the years 1919 and 1920 in the amounts of $16,900.95 and $60,854.15, respectively. The errors alleged are (1) the disallowance of deductions from gross income in the amounts of $35,657.26 for the year 1919 and $59,387.20 for the year 1920 claimed on account of commissions and other ordinary and necessary business expenses alleged to have been paid or incurred in those years; (2) inclusion in the petitioner's income for 1920 of the sum of $89,100 which was received by it in 1921 in payment for certain scrap iron and steel.
FINDINGS OF FACT.
The petitioner is an Illinois corporation with its principal office and place of business at Chicago. It is and was during the years 1919, 1920, and 1921, engaged in the business of selling scrap iron and steel.
About the beginning of the year 1920 the petitioner contracted to sell and deliver to the Central Steel Co. of Massillon, Ohio (hereinafter called the Steel Company), 50,000 tons of scrap for $40 per ton for a specified*3871 quantity of one quality and $25 per ton for the balance, all f.o.b. Massillon. The deliveries were to be made by the petitioner and accepted by the Steel Company during 1920. By the early part of July, 1920, all of the scrap so contracted for had been delivered except 14,850 tons. The Steel Company then requested the petitioner not to deliver any more scrap until further notice; on July 24 it wrote to the petitioner that it would "be unable to accept any further shipments." On August 10 the Steel Company telegraphed to the petitioner that it would insist on stopping all shipments of scrap and would return any notices received. On August 11, the Steel Company returned invoices covering three cars of scrap stating that it was unable to accept them and asking the petitioner to divert them elsewhere. The price of steel had dropped materially between the date of the contract and the refusal by the Steel Company to accept further deliveries. The petitioner, however, had already made commitments to cover the entire 50,000 tons called for by its contract with the Steel Company. Further correspondence took place until December 27, 1920, when representatives of the petitioner went to*3872 Massillon and held a conference with representatives of the Steel Company. No definite agreement was reached at that conference and it ended with the Steel Company's representatives stating they would submit to the board of directors the various matters discussed during the conference. Among other things, the petitioner was asked to make a reduction from the contract price for the scrap still undelivered, and the petitioner's representatives replied that possibly $2 per ton might be so allowed. The *64 petitioner also proposed to lease from the Steel Company space in its yards where the remaining quantity of scrap might be stored until the Steel Company could use it. The petitioner demanded a cash payment of $6 per ton for the undelivered scrap to cover freight and handling charges to Massillon. The petitioner was informed that the Steel Company could not pay cash but could probably give notes and trade acceptances.
There were no further communications until January 3, 1921, when the petitioner received from the Steel Company a letter dated December 31, 1920, as follows:
In accordance with our recent conference here at Massillon we are enclosing four trade acceptances*3873 drawn at ninety days with six per cent interest, in amounts totalling $89,100, all in accordance with credit memo also enclosed.
It is also understood that in the event we are not in a position to take up those acceptances when due, we are to have the privilege of renewal for at least another ninety days.
It is hoped, however, that business conditions will be such that it will not be necessary for us to ask you for additional time.
We are enclosing our purchase orders Nos. 3319-A and 3320-A, which the writer has signed in the absence of our purchasing agent, Mr. Adams.
With reference to the lease agreements providing suitable space for storage of material for your account, these will be forwarded to you in a few days as our attorney is now preparing them and which will not reach us before Monday of next week. In the meantime if you have to ship material do not hesitate to send it along and we will take care of it and the lease will be drawn in accordance with our personal understanding.
On the same day the Steel Company informed the petitioner by telephone that a mistake had been made in the letter and asking that it be returned, together with the orders and trade acceptances. *3874 The petitioner returned only the letter.
On January 5, 1921, the petitioner received from the Steel Company another letter, also dated December 31, 1920, as follows:
In accordance with our recent conference here at Massillon we are enclosing four trade acceptances drawn at ninety days with six per cent interest, in amount totalling $89,100, all in accordance with credit memo enclosed.
It is also understood that in the event that we are not in a position to take up these acceptances when due, we are to have the privilege of renewal, for at least another ninety days.
It is hoped, however, that business conditions will be such that it will not be necessary for us to ask you for additional time.
On January 6, 1921, the petitioner wrote and mailed to the Steel Company the following letter:
We have for acknowledgment your letter of December 31, enclosing ninety day trade acceptances bearing six per cent. interest, aggregating $89,100.
We, of course, recognize the possibility of your company being unable to liquidate this paper at maturity, and it is understood that you will have the privilege of renewing the obligations for a similar period. It is our hope, *65 *3875 however, that business conditions will better materially and that your own plant will be operating to full capacity.
You may rest assured that we are glad to cooperate to the fullest extent possible at all times and take this opportunity to extend to you our best wishes for a full measure of prosperity during the year we are just commencing.
On January 4, 1921, the parties executed a lease whereby the petitioner was given storage space for scrap metal on the property of the Steel Company.
The respondent included in the petitioner's income for 1920 the amount of the trade acceptances mentioned and disallowed deductions in the amount of $35,657.26 for 1919 and $59,387.20 for 1920, claimed by the petitioner on account of commissions and other ordinary and necessary business expenses alleged to have been paid or incurred in those years. Of the amounts so disallowed $13,532.32 are properly deductible in computing the petitioner's net income for 1919, and $3,608.30 in computing its net income for 1920.
OPINION.
MARQUETTE: After carefully considering the facts of this case we reach the conclusion that the original contract between the petitioner and the Central Steel Co. calling*3876 for the delivery and acceptance of 50,000 tons of metal scrap, was breached by the Central Steel Co. in July, 1920, after about 35,000 tons had been delivered. Upon the breach of the contract there arose a right of action by the petitioner against the Steel Company. It is true the petitioner did not choose to avail itself of that right, but bent its efforts toward inducing the Steel Company to fulfill its obligations under the contract. These efforts, which culminated in the conference at Massillon on December 27, were unavailing.
The respondent takes the position that a novation took place at the time of the conference on December 27, 1920, or at least before the end of that month. We agree that there was a novation but not with the contention that it occurred in 1920. A novation is a new contract which substitutes a new obligation for the old one, and which, by the intention of the parties, extinguishes the old obligation, and like any other contract it must be supported by good and sufficient consideration. The new contract, when executed, takes the place of the old contract and thereafter it, and not the old contract, is controlling upon the parties. *3877 Morecraft v. Allen,78 N.J.L. 729">78 N.J.L. 729; 75 Atl. 920; 1915B L.R.A. 1.
In the present appeal the facts show that the new contract did not come into existence until 1921. While the matters embodied in it were doubtless discussed at the conference on December 27, no agreement was then reached. The conference ended with nothing *66 decided upon, nothing agreed to, no offers accepted. On January 5, 1921, the petitioner in Chicago received a written offer by mail and this offer was accepted on January 6. Then, and not until then, did the new contract come into existence. It provided for a price of $8 less per ton for the scrap metal then ordered than had been the price under the old contract, and it carried an advance payment in the form of trade acceptances. The rights and obligations of the parties were fixed by its terms and they became effective and binding on January 6, 1921, and not before. We are therefore of the opinion that the respondent was in error in including in the petitioner's income for 1920 the amount of trade acceptances which it received pursuant to and by virtue of the new contract.
The parties hereto have stipulated that*3878 the petitioner is entitled to deduct on account of commissions paid, the amount of $13,532.20 in computing its net income for 1919, and $3,608.30 in computing its net income for 1920, and adjustment should be made accordingly.
Reviewed by the Board.
Judgment will be entered on 15 days' notice, under Rule 50.