Empire Lighting Fixture Co. v. Cutler

Headnote

Contract — action to recover for refusal of purchaser to accept goods sold -— defense of modification of contract as to place of delivery, ' ,

Empire Lighting Fixture Co., Inc., v. Cutler, 196 App. Div. 924 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 16, 1921, affirming a judgment in favor of

plaintiff entered upon a verdict. " The plaintiff and defendants on August 29, 1917, entered into a written agreement for the purchase by. the defendants of one car (estimated 60,000 pounds) prime western or Balbach lead at ten and one-eighth cents per pound, to be delivered at New York on pier or ex store during the month of October, 1917, payment to be made by defendants “ net cash against bill of lading or delivery order add weigher’s return.” The complaint set forth the foregoing contract and alleged that a New York delivery was duly tendered to the defendants; that the defendants refused to accept the goods and the plaintiff was thereby damaged. The defendants claimed that prior to the expiration of the period of delivery the place of delivery was changed .by agreement of the parties from New York to Perth Amboy, and that the plaintiff failed to deliver the car of lead at Perth Amboy in October, 1917, pursuant to the amended agreement.