Patton v. Arnold, Hoffman & Co.

Headnote

Contract — sale — action to recover for failure to deliver goods — defense of lack of mutuality.

Patton v. Arnold, Hoffman & Co., Inc., 203 App. Div. 887 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1922, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was for damages for breach of contract arising out of the defendant’s failure to deliver liquid chlorine.

The plaintiff and his assignor, while copartners doing business under the firm, name of Darnell & Patton, entered into a written agreement with the defendant corporation for the purchase and sale of liquid chlorine. The contract provided that the respondent agreed to sell to Darnell & Patton and that the latter agreed to buy from the respondent, Darnell & Patton’s entire supply of liquid chlorine to be used in the treatment of flour and cereals from the date of the contract to March 15, 1917, not to exceed 50,000 pounds monthly, the price ranging from nine cents per pound for the first 20,000 pounds to prices fixed for different amounts on subsequent deliveries. Near the end of the typewritten contract was a special clause written in ink as follows: “ Buyers to have the option of taking chlorine for other uses to be applied on above contract.” Defendant contended that the contract was void as lacking in mutuality.