Imperial Products Co. v. Capitol Chemical Co.

Headnote

Imperial Products Co. v. Capitol Chemical Co., 187 App. Div. 599 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 26, 1919, reversing a determination of the Appellate Term which reversed a judgment of the City Court of the city of New York in favor of plaintiff entered upon a verdict and affirming said City Court judgment. The action was brought to recover damages for breach of contract of sale entered into between the parties pursuant to which the defendant agreed to deliver to the plaintiff one car of standard white napthalene flakes in barrels or paper lined boxes at eight cents per pqund f. o. b. West Elizabeth, N. J., prompt shipment from defendant’s plant at Birmingham, Ala. In the complaint plaintiff alleged that it was

ready, willing and able to pay for the goods, but defendant refused to deliver the same. At the trial it was established that the plaintiff tendered a certified check in payment for the goods, but demanded the right to inspect the same before payment. The defendant insisted on its right to receive the check in exchange for a bill of lading without inspection. The trial court charged the jury that plaintiff was entitled to inspection. The question involved in this appeal was whether, under the circumstances disclosed, plaintiff was entitled to inspect the merchandise before paying for the same.