157 N.Y.S. 499 | N.Y. App. Div. | 1916
The action is to recover a balance of $6,565.65 alleged to be due and unpaid upon the sale of goods to the defendant by the plaintiff. It was shown conclusively at the trial by the evidence of both parties that on August 29, 1913, the defendant’s representative called at the plaintiff’s place of business and bought 230 pieces of chinchillas of a total value of $14,988.40, upon “ Terms September 15, 10/30,” which meant that defendant was entitled to ten per cent' discount upon payment within thirty days from September fifteenth. It was also agreed that the goods were to be held in plaintiff’s warehouse subject to defendant’s orders, and that any goods paid for after October fifteenth were to be still subject to the ten per cent discount less interest at six per cent on the purchase price from October fifteenth .to the date of said payment.
The only conflict in the case relates to the terms of credit, and was a very sharply contested one. Plaintiff’s witnesses testified that the defendant was given no definite line of credit, but on the contrary all deliveries were to be subject to the approval of Spalding, plaintiff’s credit man, depending in each instance upon whether at that particular time plaintiff had allowed defendant as much credit as he was willing to risk. The defendant’s witnesses, on the other hand, claimed that the plaintiff agreed toa maximum credit margin of $12,000.
Various demands for delivery of the goods were made from time to time during September, October and November, and a large portion of the goods was delivered pursuant thereto. Each shipment was approved by Spalding as to credit before it was delivered to defendant, and during September and October Spalding refused to honor some of the defendant’s demands
It seems clear from the testimony of both the plaintiff’s and defendant’s witnesses that the transaction was an executed sale and title to the merchandise passed to the defendant on August twenty-ninth. This is the theory upon which the plaintiff rests his case, and the defendant’s principal witness, Samuel T. Slater, testified that after inquiring the price, colors and amount of the goods he said: “All right. Then the goods is mine at $1.60 for the colors and one dollar and sixty-seven and one-half cents for the brown. I want to take them in during the months of September and October and the early part of November.” He was then told to see Spalding and arrange about credit and payments, which he did, and the goods were charged to defendant; invoices for the entire purchase were sent to defendant and the goods were held subject to defendant’s orders. The merchandise was then the property of the defendant subject to plaintiff’s right to hold it until payment of the purchase price was made pursuant to the terms of credit arranged between them.
I am of the opinion, therefore, that the defendant waived the alleged breaches of the contract committed prior to that time, and its refusal to receive and pay for the balance of the order on December fifth and thereafter was unjustifiable.
The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide event.
Clarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.