Walsh v. James Talcott, Inc.

Headnote

Contract — agreement for sale of merchandise — action to recover for failure to fully perform.

Walsh v. Talcott, Inc., 198 App. Div. 946 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division -of the Supreme Court in the second judicial department, entered August 1, 1921, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict. The action was brought to recover damages for an alleged breach of contract relating to the purchase and sale of cotton damask. The complaint alleged that the parties entered into an agreement in writing for the sale by defendant to plaintiffs of 4,000 pieces of damask at 21| cents per yard; that defendant delivered and plaintiffs paid for' 3,284 pieces but that defendant has failed and refused to complete the contract by making delivery of the balance. The defendant denied the material allegations of the complaint, alleged that the contract sued upon was not made between the plaintiffs and the defendant, which was a domestic corporation engaged in business as a commercial banker and factor, but that as such factor and at the request of D. D. Campbell who made the contract the defendant delivered to the plaintiffs certain pieces of said cotton damask and received payment therefor; that plaintiffs had failed to perform the contract by failing to receive and pay for the merchandise under the contract, and that the contract was impossible of full performance due to the

fact that the United States government had taken over the entire output of the looms in the mill where said cotton damask was being manufactured, and that at the termination of its requirements the looms were so badly broken that the same were useless and could not be used for the manufacture of cotton damask.