Turner-Looker Co. v. Aprile

Headnote

Sale — when tender of warehouse receipts a sufficient tender of delivery of merchandise.

Turner-Looker Co. v. Aprile, 195 App. Div. 706 , affirmed.

Appeal from a judgment, entered March 30, 1921, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling defendant’s exceptions, ordered to be heard in the first instance at the Appellate Division, denying a motion for a new trial and directing judgment in favor of plaintiff upon the verdict directed at the trial court. The action was to recover the purchase price of merchandise alleged to have been sold to defendant. The complaint alleged an agreement to purchase and sell ten barrels of whisky at $3 a gallon in bond and states that the net amount agreed to be paid for said whisky was $1,466.97. It alleged that the plaintiff, through the Lincoln National

Bank, tendered to the defendant the warehouse receipts for said whisky upon the payment of said amount and that the defendant refused to accept said receipts and has since refused to accept said whisky and pay for the SUme; that the plaintiff holds said whisky for said defendant and is ready and willing to deliver the same upon 'the payment of the purchase price. The answer contained the following admission: “ Admits that on or about May 16, 1918, said plaintiff and said defendant entered into an agreement whereby said plaintiff agreed to sell and said defendant agreed to purchase ten barrels of Kentucky whisky, Spring 1913 or 1914, at the agreed price of Three Dollars per gallon,” and then alleged that the plaintiff had not complied with the terms of the agreement, that it had never delivered or offered to deliver said whisky to the defendant.

The Appellate Division held that tender of delivery of the warehouse receipts was equivalent to an actual delivery or a tender of physical delivery of the merchandise.