56 Misc. 589 | N.Y. App. Term. | 1907
Defendant wrote to plaintiff on October 25, 1906, requesting a quotation of prices on specified varieties of sewer pipe and a statement of the date of the “ earliest possible delivery.” The plaintiff replied on October 27, 1906, that it could furnish the pipe “ at 83$ discount from list, allowing freight to destination,” and that it had all the articles on hand, with one exception, i. e., “ the 12 x 12 x 12 V branch,” 'and that it “ could make immediate shipment on receipt of order.” The exception above mentioned was only one item out of some thirty-two items speci-. fied in defendant’s letter of October twenty-fifth. Thereafter and on November nineteenth, defendant sent an order for the goods specified, upon which order were also written the words: “ Shipment: Earliest possible.” The order was accepted and part of the pipe was shipped on November 27, 1906, and defendant paid for the same. The balance of the pipe, comprising the greater portion of the order and many items beside the exception above mentioned in-plaintiff’s letter of October twenty-seventh, was not shipped from plaintiff’s factory until December 28, 1906, thirty-one days after the shipment of the first carload of goods and thirty-nine days after the giving of the order. On account of this long delay defendant claims to have obtained the articles elsewhere and refused to accept the shipment from plaintiff or to pay for the pipe. It notified plaintiff by telegram on December twenty-
Upon the whole case we are of opinion that the judgment should be affirmed, with costs.
Leventritt and Erl anger, JJ., concur.
Judgment affirmed, with costs.