214 A.D. 86 | N.Y. App. Div. | 1925
The plaintiff, during all the times mentioned in the complaint, was engaged at East Greenwich, R. I., in the manufacture of woolen cloth, under the trade name of Greenwich Mills. Prior to October 8, 1920, the plaintiff had manufactured for and delivered to the defendant a woolen cloth designated as “ Style 117/1.” This cloth had been found by the defendant to be of fighter weight than he required in his business, and on October 8, 1920, the plaintiff and the defendant at the city of New York, where the defendant was engaged in business and the plaintiff had a sales office, entered into an agreement in writing whereby the plaintiff agreed to manufacture 335 pieces of woolen cloth of sixty yards to the piece, in ten different patterns, at the contract price of three dollars and ninety-five cents per yard. These goods were of a special weight and pattern desired by the defendant, and each of the ten styles was covered by a separate order designated “ via Special ” which the plaintiff testified signified that the goods were to be sent over by messenger from plaintiff’s shipping department. The contract provided that the 335 pieces of goods of the ten styles were to be of the said quality 117 /I and were to weigh twelve to twelve and one-half ounces to the yard and were to be woven with more “ picks ” to give a slightly firmer cloth than that theretofore manufactured by the plaintiff for the defendant. While the goods were in manufacture, by agreement of the parties, the number of pieces was reduced from 335 to 285 pieces. The goods were manufactured at plaintiff’s mills and finished at plaintiff’s finishing department at the city of Philadelphia, Penn. Under the terms of the contract deliveries of the goods were to be made starting in November and were to be completed “ early in January — sooner if possible.”
In his complaint the plaintiff alleges that after the making of the contract the plaintiff made all necessary preparations for the manufacture of said goods in accordance with the specifications
Upon the trial there was little dispute in the evidence as to the essential facts in the case, and it appeared from the evidence that on November 27, 1920, two agents of the plaintiff tendered to the defendant ten pieces of goods alleged to be in conformity with the contract, and demanded that the defendant accept and receipt therefor. The goods thus tendered were wrapped in paper and tied. When the ten pieces reached the defendant’s place of business, plaintiff’s representative presented to defendant a receipt for the ten pieces and requested that the defendant take the goods and sign
According to the undisputed evidence upon the trial it appeared that the pieces of cloth manufactured by the plaintiff under said contract did not contain in any instance more than fifty-three yards, and that the average yardage in each piece was fifty-one and one-quarter yards.
At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to prove a cause of action against the defendant: First, that the plaintiff’s proof showed that he had tendered or caused to be carried to the defendant’s place of business during the latter part of November and first of December, pieces of goods containing no more than fifty-three yards to the piece, and some of them as low as fifty yards to the piece, as an alleged tender in compliance with the terms of the contract; second, that it appeared from the undisputed evidence that when the goods were tendered the defendant requested the right to examine the same for the purpose of determining whether they were in conformity with the contract, and that such request was denied by the plaintiff. The defendant also moved for a nonsuit upon the ground that the contract was an installment contract requiring delivery of the goods in installments over a period of not less than three months, the goods to be paid.
We think that the court’s position in this respect was erroneous, and that the court erred in thus instructing the jury. Such instruction was in direct conflict with the provisions of section 128 of the Personal Property Law (as added by Laws of 1911, chap.
Subdivision 2 of section 128 of the Personal Property Law provides as follows: “ Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.”
The undisputed evidence in the case shows that such an examination was all the defendant asked upon the several tenders of the pieces of goods by plaintiff’s agents. The evidence shows that the defendant wanted the goods, but that he wished to examine the same before receipting therefor to ascertain whether they were in conformity with the contract. Subdivision 1 of section 128 of the Personal Property Law clearly relates to an examination after delivery, whereas, subdivision 2 of said section accords to the buyer the right of examination “ when the seller tenders delivery of goods to the buyer,” unless otherwise provided in the contract. The buyer may waive this primary right of examination before accepting delivery of the goods and have recourse to the right of examination within a reasonable time after delivery, but the statute clearly accords to the buyer the right to examine before accepting delivery. The statute is so plain and unambiguous in its terms as to require the citation of no authority, other than the statute itself. In Glass & Co. v. Misroch (239 N. Y. 475) the Court of Appeals, discussing the rights of inspection before and after delivery of the goods, said (at p. 482): “ The buyer, when delivery is tendered, may refuse to assent to it at all
It would, therefore, seem that the trial court erred in holding as matter of law that by reason of defendant’s demand to examine the goods prior to accepting delivery thereof, the defendant repudiated the contract and rendered himself hable to respond to the plaintiff in damages.
We are also of the opinion that the plaintiff’s tender of goods averaging fifty-one and one-quarter yards to the piece was not a substantial compliance with the contract in suit. The complaint aheged full performance on plaintiff’s part, and the court held
We are, therefore, of the opinion that by reason of the failure of the plaintiff to show a tender of the goods in conformity with the contract, and by reason of the court’s erroneous attitude in regard to the defendant’s right of examination of the goods tendered prior to acceptance of delivery thereof, and the erroneous instruction to the jury in this respect, to which due exception was taken by the defendant, the judgment and order appealed from should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.
Clarke, P. J., Dowling, McAvoy and Burr, Jj., concur.
Judgment and order reversed, with costs, and complaint dismissed, with costs.