1 A.D.2d 1014 | N.Y. App. Div. | 1956
In January, 1947, respondent ordered two printing presses from appellant at a specified price and terms of payment. The contract contained a clause providing that “ These prices subject to increase at vendor’s option to effective permitted legal prices prevailing on date of shipment with addition [sic] cash increase subject to same terms”. The presses were not ready for delivery to respondent’s premises until October, 1948, at which time appellant demanded the increased price then prevailing before it would make delivery. Respondent acceded to that demand, made the additional cash payment required, and executed a series of notes, secured by a chattel mortgage, in the larger amounts requested. The notes were paid as they became due. Over six months later, respondent for the first time advised appellant that he had been overcharged and thereafter instituted the instant action for a reformation of the contract so as to conform it to the original agreement, and for other relief, claiming that he had agreed to the increased price only because he required the presses in his business. The Special Term held, in substance, that the clause above quoted afforded no justification for the price increase and that respondent was entitled to judgment because of the duress practiced on him by appellant. The appeal is from the judgment entered thereon. Judgment reversed on the law, with costs, and complaint dismissed, with costs. The findings of fact are affirmed. In our opinion, the increased price could properly be demanded under the provisions of the escalator clause in the original contract signed by respondent. Under the plain and unambiguous terms of that clause, appellant had the right to charge the price prevailing on the date of shipment, provided that such price was not prohibited by any provision of law. Since it is undenied that the price demanded was the prevailing price throughout the country, and that it was not prohibited by law, the clause was valid and binding. (Brandtjen & Kluge v. Landres, 146 N. Y. S. 2d 453; cf. Personal Property Law, § 90, subd. 1; Argus Co. v. Mayor, Aldermen & Commonalty of City of Albany, 55 N. Y. 495, and Franklin Sugar Refining Co. v. Lipowicz, 247 N. Y. 465.) If it be assumed that the origiiial contract was modified to provide for the increased price, respondent may not avoid such modification on the ground of duress. There was no proof that presses capable of doing the work for which appellant’s machines were intended were unobtainable, nor did it appear that