200 A.D. 78 | N.Y. App. Div. | 1922
The complaint alleged a sale and delivery of goods to the defendant at the city of New York between the 3d and 23d of March, 1920; that the goods were of the fair and reasonable value of $4,489.62, and defendant promised and agreed to pay that amount therefor, but, although demand has been duly made, it has failed to pay any part thereof. Defendant put in issue the material allegations of the complaint and pleaded four separate defenses. One of the defenses consists of a plea of the Statute of Frauds. Another was a plea that the plaintiff was not the real party in interest. The others are predicated on breaches of warranty and of a contract alleged to have been made between the parties on or about the 10th of December, 1919, by which the plaintiff agreed to sell to the defendant certain goods, which defendant alleges are the goods mentioned in the complaint, and with respect thereto it is alleged that owing to the plaintiff’s failure to perform the contract, defendant rescinded and offered to return part of the goods delivered under the contract and refused to accept any further deliveries of goods thereunder and that there was an accord and satisfaction.
It developed on the trial that the goods, the purchase price of which the plaintiff seeks to recover, were part of the goods covered by a contract in writing between the parties bearing date December 10, 1919, as alleged by the defendant. This eliminated the defenses of the Statute of Frauds and that the plaintiff was not the real party in interest. In support of the general allegations of the complaint with respect to the sale and delivery of the goods, the plaintiff offered the contract of December 10, 1919, in evidence. It was for the sale and delivery of twenty-five pieces of Bolivia goods of four colors. The purchase price was merely stated to be seven dollars. The contract does not state the number of yards of goods in each piece. It was assumed on the trial that the designated purchase price was per yard. Although the contract was for the sale of twenty-five pieces of goods, it was stated by counsel for the plaintiff on the trial, and acquiesced in, that it was only intended to cover the sale of twenty-four pieces. The evidence shows that twelve pieces of the goods were actually delivered,
Clarke, P. J., Dowling, Page and Merrell, JJ., concur.
Judgment and order reversed, with costs, and complaint dismissed, with costs.