Schnitzler v. Waldes

Headnote

Schnitzler v. Waldes, 171 App. Div. 907 , affirmed.

Appeal from a judgment of the* Appellate Division of the Supreme Court in the first judicial department, entered November 11, 1915, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court. Plaintiffs brought this action to recover the damages they sustained by reason of defendants’ refusal to deliver to them certain snap fasteners which the defendants, on November 9, 1914, contracted to sell

and deliver to them, “ as soon as possible,” at one dollar and fifty-six cents a great gross. The complaint alleged defendants’ partial performance of this contract by delivery of part of said merchandise and plaintiffs’ payment therefor. It further alleged defendants’ refusal to deliver the balance of such merchandise after the lapse of more than a reasonable time, and after due demand, unless plaintiffs would pay the market price of two dollars instead of the contract, price of one dollar and fifty-six cents a great gross. The defendant contended that the fasteners were imported from Austria, Germany, Russia and France; that by reason of the prevailing conditions in Europe and in the trade here, the words “ as soon as possible ” were inserted in the contract. The stock on hand was divided in proportion by the defendants, appellants, according to orders and percentages for delivery. It is also contended that no proper tender was made by plaintiffs to put the defendants in default, and the plaintiffs offered no proof that they were ready, willing and able to pay for the unfulfilled portion of the order, as alleged in the complaint.