Rossbach v. Mansfield Tire & Rubber Co.

Headnote

Rossbach v. Mansfield Tire & Rubber Co., 171 App. Div. 914 , affirmed.

Appeal from- a judgment of the Appellate Division-of the Supreme Court in the first judicial department, entered December 3, 1915, affirming a judgment in favor of defendant entered upon a verdict. The action was

to recover upon two contracts by which plaintiff agreed to sell and defendant agreed to purchase certain rubber. The complaint alleged that the plaintiffs delivered two tons under the first contract (which were paid for); that further shipments were deferred at defendant’s request; that the plaintiffs were.at all times ready, willing and offered to fulfill their obligations under said contract, but that defendant refused to carry it out, but, on the contrary, repudiated it. Under the second cause of action, the allegations of the complaint are practically the same, except.that no deliveries were alleged, but all deliveries were deferred at defendant’s request. The answer set up as a defense that the delivery of the rubber was deferred by agreement and no definite times of delivery agreed upon, and that plaintiffs waived their rights to make shipments and deliveries at the times specified in the contract; and that, while defendant was in no manner in default, the plaintiffs refused to make shipments or deliveries, though demanded; that plaintiffs breached the contract, and that thereupon defendant abandoned it.