Farish Co. v. Phillips-Jones Corp.

Headnote

Contract — sale — action to recover contract price of goods tendered and refused — defense that tender was made after time specified in contract for delivery —■ trade custom permitting delivery of such goods ivithin thirty days after last shipping date.

Farish Co. v. Phillips-Jones Corporation, 208 App. Div. 727 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 25, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived. The action was on a written contract entered into on April 20, 1920, by which the plaintiff, respondent, agreed to manufacture and the defendant, appellant, agreed to take 200,000 yards of fancy cotton goods, and, in addition five per cent “ seconds ” and ten per cent “ runouts ” if made. The contract, under the heading of “ delivery,” provided “ about equal monthly, May, June, July and August.” It was conceded that 200,000 yards of the goods were manufactured and delivered to defendant, appellant, by August 31, 1920. The 200,000 yards were paid for in full by defendant, appellant, and hence no claim was made for them. The action concerned alone 8,217 yards of seconds and 10,636 yards of runouts which plaintiff, respondent, did not tender until September eighteenth. These appellant refused to accept on the ground that they were tendered after the last time fixed for delivery under the contract, namely, August thirty-first. Respondent admitted that the written terms of the contract nowhere provided for delivery of goods after August thirty-first but defended the tender on the ground of an alleged custom in the trade,- which permitted delivery of runouts and seconds on contracts of purchase..and sale of a specific number of yards of firsts within thirty days after the last shipping date fixed in the contract,