261 A.D. 886 | N.Y. App. Div. | 1941
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs, for the reason that the plaintiff failed to establish any uniform force majeure clause customary in the trade. That fact is manifest from the evidence of the three witnesses who testified on that subject for the plaintiff. Although some kind of a force majeure clause appears commonly to have been inserted in contracts for the sale of cocoanut oil, they differed in such important respects in their terms that it cannot be said that parties in the trade contracted with relation to any particular force majeure clause. Under at least one such clause the defendant would not be liable in this action.
Glennon, Untermyer, Dore and Callahan, JJ., concur; Martin, P. J., dissents.
Judgment and order reversed, with costs, and the complaint dismissed, with costs.
