194 A.D. 583 | N.Y. App. Div. | 1921
This is an action by a buyer to recover damages for a breach of a contract to sell and deliver goods. Plaintiff was engaged, among other things, in manufacturing shirts at McKeesport, Penn., under the name of H. B. Ferguson Company, and the defendants, under the name of Chuck, Davis & Co., were engaged in'business as converters and jobbers in cloth and their principal place of business was in the city of New York. On the 22d day of November, 1917, plaintiff placed an order in writing with the defendants for the purchase of “ about ” 45,000 yards of “ Fast Black ” sateen at twenty-one and one-half cents per yard and “ about ” 30,000 yards of “ Fast Sulphur Khaki shade ” sateen at twenty-two and one-half cents per yard. The order for the 30,000 yards was modified by mutual consent by changing 28,000 yards to black sateen, the same as the order for the 45,000 yards, but the purchase price of the 28,000 yards was changed to twenty-two and one-eighth cents per yard. Defendants, on invoices dated November 22, 1917, March 14, March 25, and April 8, 1918, delivered 24,612 yards but failed and refused to deliver the remaining 50,388 yards.
The contract provided with respect to the time of deliveries as follows: “About April, 1918. About May, 1918, sooner if possible.”
With respect to the terms of payment, the contract provided as follows: “ 2/10/60 F. O. B. New York' City.” This, it was conceded, meant that payments were to be made within seventy days at a discount of two per cent. The contract which was evidenced by the "written order provided that partial deliveries were to be paid for at the contract rates upon maturity of the bills therefor, and that the order was given and accepted "subject to a limit of credit determinable at any time by the defendants. Payment for the first and third invoices of goods
Clarke, P. J., Page and Merrell, JJ., concur; Smith, J., votes for reversal of the judgment and dismissal of the complaint.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event.