Levy v. Roth — 148 A.D. 241

Majority

p. 241

Archibald L. Levy, Appellant, v. Ignatz Roth, Respondent.

First Department,

December 29, 1911.

Headnote

Pleading — sale — agreed price of goods — setting forth written order.

Where a plaintiff, suing to recover for goods sold and delivered, alleges that they were sold pursuant to a written order, he is entitled to plead the terms of the order and is not required to rely upon an implied obligation to pay for the goods received, although such goods were not the entire quantity covered by the order.

This is so, although the complaint would state a cause of action to recover the reasonable value of the goods if the allegations regarding the written order were omitted.

Appeal by the plaintiff, Archibald L. Levy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1911, granting the defendant’s motion to strike out certain allegations from the amended complaint as irrelevant and redundant.

Michael Schaap [Edward Hymes with him on the brief], for the appellant.

Louis J. Vorhaus, for the respondent.

The action is brought on an assigned claim for goods alleged to have been sold and delivered by one Kulcke, plaintiff’s assignor, to the defendant. The .plaintiff alleges that on the 15th day of February, 1909, the defendant gave an order to Kulcke in writing in German, a correct translation of which is annexed to and made a part of the complaint, for certain cloth known as “Royal,” and agreed to pay therefor the sum of three and thirty one-hundredths marks per meter; and certain other cloth.known as “G-ertrude,” and agreed to pay therefor the sum of two and eighty one-hundredths marks per meter. It appears by the translation that the order was for 1,000 pieces of “Royal” tobe fifty-four inches in width between borders according to patterns submitted to defendant; that 150 pieces

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were to be ready for delivery by. a time specified; and that the goods should be paid for in cash within thirty days from the invoice; that more precise specifications of colors were to be transmitted by mail the day after the order was given, and that .the goods “must all be dry and dry-pressed, with high gloss.” The translation showed that the order was for 500 pieces of the other goods and gave similar particulars with respect thereto. It also conditionally embraced an order for 500 pieces of goods known as “Ideal.”

It is further alleged that on or about the 18th day of April, 1909, Kulcke sold and delivered to the defendant at his special instance and request and pursuant to said order, forty pieces of goods known as “Gertrude” containing 1,555 AV meters, and one hundred and sixty-eight pieces of the same goods containing 6,720X2A meters, and forty-four pieces of the goods known as “Boyal” containing 5,786TsAi- meters; and that on or about the 12th day of Hay, 1909, at the special instance and request of defendant and pursuant to said order Kulcke sold and delivered to defendant sixteen pieces of the goods known as “Boyal” containing 642AV meters, and thirty-six pieces of the goods known as “ Gertrude ” containing 1,403AV meters. The reasonable value of the goods is then alleged in marks the same as provided in the order, and it is averred that defendant promised and agreed to pay the said smn less a discount of five per cent, which was expressly provided for in the order with respect to the goods known as “Boyal;” but apparently not as to the other goods. The plaintiff then alleges the balance due over and above payments made, demand of payment, and the assign- • ment of the claim to him.

The order from which the appeal is taken strikes out the order in writing and all allegations with respect thereto. It is quite true that the complaint sufficiently shows a cause of-action to recover the reasonable value of goods sold and delivered to the defendant by the plaintiff’s assignor without either the order in writing or the allegations with respect thereto; but eliminating the allegations concerning the order in writing it would be incumbent upon the plaintiff to prove the reasonable value of the goods, whereas the price which plaintiff seeks to recover is the purchase price specified in the order, and if the

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making of the order he admitted by defendant, plaintiff will be relieved from further proof with respect to the value of the goods. Since the plaintiff claims that the goods were sold and delivered pursuant to an order in writing, although they are not the entire quantity of goods covered by the order, he is entitled to plead the contract under which they were sold and delivered, and is not required to rely upon an implied obligation to pay for goods received. It is eminently proper to plead the terms of the contract even though that might not be necessary, for it is manifest that questions may arise with respect to the time of delivery or quantity or quality of goods that will necessarily require that resort be had to the contract to determine the rights of the parties.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.