112 Misc. 588 | N.Y. Sup. Ct. | 1920
The defendants move for judgment upon the pleadings, consisting of a complaint and an answer. The question is whether the complaint states a cause of action. The complaint alleges that at the city of New York the parties entered into two agreements, dated May 7, 1918, and November 1, 1918, respectively, designated as Exhibits A and B, which are annexed to the complaint and by appropriate alie
Exhibit A.
“ Contract between A. B. Harbison, trading as the Philadelphia Hosiery Co., and Edward S. Buckman, trading as the West Side Knitting Co., and Alexander Propper & Co. A. B. Harbison, trading as the Philadelphia Hosiery Co., and Edward S. Buckman, trading as the West Side Knitting Co., hereby agree to sell, and Alexander Propper Co. to buy, from seventy-five thousand (75,000) to one hundred thousand (100,000) yards all wool khaki knitted cloth like sample, to be delivered in monthly installments of about ten thousand (10,000) yards. Deliveries to be completed by December 31, 1918. Weight of cloth about 16 oz. Width about 54 inches. Price three and 67%/100 Dollars ($3.67%) per yard, payable net cash f. o. b. Allentown upon receipt of invoice, together with bill of lading or express receipt. It is understood and agreed that Charles G-. David & Co., Inc., are the agents who have negotiated this sale, and are entitled to a commission of seven and one-half cents (.07%) per yard. The seller agrees that this amount may be deducted by the buyer from each remittance and paid by the buyer to Charles Gr. David & Co., Inc., and the buyer agrees to make such deduction and to make the corresponding payments to Charles Gr. David & Co., Inc., simultaneously with making payments to the seller.
“ Dated May 7, 1918.
“A. B. Harbison,
“ Edw. S. Buckman,
“ Alexander Propper & Co.,
‘ ‘ By Alexander Propper.
“ Witnessed:
“ Charles Gr. Dated.”1
*591 Exhibit B.
“November 1,1918.
“A. B. Harberson, trading as the Philadelphia Hosiery Co., and Edward Buckman, trading as the West Side Knitting Co., hereby agree to cancel, and Alexander Propper So Co. agree to accept such cancellation on contract made between said parties under date of May 7,1918. It is further agreed that in consideration of said cancellation the Philadelphia Hosiery Co., through Mr. A. B. Harberson, agree to allow the sum of thirty-five hundred dollars ($3,500.00) to be deducted from pending bills. Said thirty-five hundred dollars ($3,500.00) to be allowed for poor delivery on cloth, cotton being substitution to a certain extent in place of all-wool. The Philadelphia Hosiery Co. further agrees to an allowance of 42%c per yard on fifty pieces of cloth now in possession of Alexander Propper & Co. Fifteen pieces of cloth to be delivered by Mr. C. G-. David to Alexander Propper So Co., and billed at $3.25 per yard. Alexander Propper So Co. agrees to accept 15,025 pieces of cloth at $3.25 per yard, of which approximately-is to be delivered weekly, and delivery to be completed by the 25th of December, 1918, and said cloth to be the same as delivered hitherto.
“ Alexander Propper So Co.,
“ By Alexander Propper.
“ Witnessed by Charles G. David.”
The complaint then alleges ‘ that the plaintiffs have duly performed all the conditions on their part to be performed.” The complaint further alleges that the plaintiffs delivered to the defendants, and the defendants accepted, under contract Exhibit B, a certain number of pieces of cloth; that “ the plaintiffs delivered under said last mentioned contract to the defend
Motion granted, ivith ten dollars costs, with leave to the plaintiffs to amend within twenty days after service of a copy of the order to be entered hereon, Avith notice of entry thereof, and upon payment of such costs.
Ordered accordingly.