Eagle Manufacturing Co. v. Arkell & Douglas, Inc.

Headnote

Sale — action to recover purchase price of goods — defenses that plaintiff was a foreign corporation and had not complied with section 15 of General Corporation Law and that plaintiff had failed to ship goods in accordance with contract not sustained.

Eagle Manfg. Co. v. Arkell & Douglas, Inc., 197 App. Div. 788 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1921, affirming a judgment in favor of plaintiff, entered upon a verdict directed by the court. The complaint alleged the sale and delivery of merchandise to defendant between October 7, 1920, and November 4, 1920, at the agreed price of $2,802.01. The answer denied the allegations of sale and delivery and for a first and separate defense alleged that the plaintiff was a foreign corporation doing business in this state which had failed to comply with the provisions of section 15 of the General Corporation Law. For a second separate defense the answer alleged that the merchandise in suit was purchased on or about the 10th of March, 1920, pursuant to three orders marked Exhibits “ A, ” “ B ” and “ C,” respectively, providing for the delivery of the goods mentioned in Exhibit “C” in May and of the remainder in July or August; that plaintiff failed to make delivery at the time fixed; that on August fourth plaintiff agreed to ship said goods as soon as freight conditions permitted, those in Exhibit “ C ” to be shipped first and the others soon thereafter, and that on September twenty-ninth, relying upon such promise, defendant extended the time of shipment of the goods, but that the plaintiff failed to ship the goods in the manner agreed upon and by reason thereof the defendant refused to accept delivery. The Appellate Division held that the separate defenses were not sustained by the facts proved.