Majority
p. 138In the Matter of the Arbitration between Art Infants Wear, Inc., Appellant, and Jack C. Turk et al., Individually and as Copartners Doing Business under the Name of Jack C. Turk Company, Respondents. First Department, May 2, 1947.
David N. Aberman of counsel (Martin C. Greene with him on the brief; Blumberg, Singer & Aberman, attorneys), for appellant.
Samuel D. Turk of counsel (Sydney J. Schwartz with him on the brief), for respondents.
Assuming that the sales contract between these parties could have been terminated by either under the clause “ Prices are subject to change without notice ”, it continued binding until one party informed the other of a change in' price. No notice of a change in price was given. When delivery of the goods was tendered by the seller, it was rejected by the purchaser solely on the ground that the quality of the
p. 139
material did not measure up to the contract. Rejection on this ground waived the right to change the price (Littlejohn v. Shaw, 159 N. Y. 188 ; Hess v. Kaufherr, 128 App. Div. 526 ). The contract; including the arbitration clause, thus remains effective concerning these transactions. The presence in a contract of a clause terminating it at the option of either of the parties “ has no effect on the binding obligations of the contract as long as the parties continue to act under it before revoking or terminating it.” (17 C. J. S., Contracts, § 399, p. 889.)
The order appealed from should be 'affirmed, with $20 costs and disbursements.
Martin, P. J., Glennon, Dore and Van Voorhis, JJ., concur; Callahan, J., concurs in result.
Order unanimously affirmed, with $20 costs and disbursements.
Cases cited
- Littlejohn v. Shaw 159 N. Y. 188 p. 139