119 A.D.2d 791 | N.Y. App. Div. | 1986
— In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Nassau County (Clavin, J.), entered January 23, 1985, which, after a nonjury trial, is in favor of the plaintiff and against them in the sum of $13,070.15.
Judgment modified, on the law, by deleting the provisions thereof which are in favor of the plaintiff and against the defendant Michael La Marca, and substituting therefor a provision dismissing the complaint as to that defendant. As so modified, judgment affirmed, without costs or disbursements.
The trial court properly concluded, on the basis of the plaintiff’s uncontroverted evidence of custom and usage in the trade (UCC 2-202, 1-205 [2]; see also, Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6), that the transaction in this case was in the nature of a "sale or return” transaction (UCC 2-326 [1] [b]; see also, Homix Prods. v Henry Pape, Inc., 274 App Div 648, affd 299 NY 773). Thus, the trial court correctly determined that the term "fully guaranteed sale” was meant to confer upon the plaintiff the right to return all goods which it was unable to sell and to be reimbursed for the purchase price of those unsold goods. Moreover, the evidence established that the defendant Tele-Star Media Corp., the manufacturer’s sales representative, was an independent contractor having no authority to bind the manufacturer and, therefore, the trial