181 A.D. 317 | N.Y. App. Div. | 1918
The action is to recover damages for the failure of the defendant to deliver to the plaintiff iron pipes which it is claimed the plaintiff purchased from the defendant upon the 3d day of March, 1915. The purchase was in the form of a letter, which was accepted by the defendant, and the letter, as far as material, reads as follows:
“ Gentlemen.— As per verbal arrangements made with your Mr. Sackett this morning, we herewith confirm purchase from you of all the good second-hand pipe beginning with sizes 2" and upward including in the purchase only one carload of 7" pipe at the agreed price of lc per lb. F. O. B. cars your switch or F. O. B. our trucks Van Cortlandt Park. Terms of payment by cash as soon as each car or truck is loaded.” There are three main questions upon which the appellant relies:.First, upon the close of the plaintiff’s case the court allowed an amendment authorizing the defendant to plead both payment and an accord and satisfaction. This was unauthorized, as the motion should have been made at Special Term. A new affirmative defense was thereby introduced.
It is claimed by defendant that the plaintiff broke its contract by failing to pay cash upon delivery of these goods as stipulated. But this payment of cash upon delivery could have been waived, and upon the evidence itself it was waived
The judgment should, therefore, be reversed and a new trial granted for the error in permitting the amendment and in admitting evidence of reservations of the iron made at the time the written contract was signed.
Clarke, P. J., Scott, Page and Shearn, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.