General Commercial Co. v. Coleman

Headnote

Contract — sale — action to recover for goods sold and delivered — counterclaim, for damage arising from failure to deliver in accordance with contract — reply that delivery was prevented by strikes and fire.

General Commercial Co., Ltd., of U. S. v. Coleman, 208 App. Div. 803 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 4, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for goods sold and delivered under a contract whereby plaintiff agreed to sell and

deliver to defendant 7,000 pounds of yarn to be delivered in installments of 1,000 pounds weekly commencing February, 1920. Plaintiff made but two deliveries under the contract, one of 650 pounds on April seventeenth and one of 450 pounds on June third, and it was to recover payment for the latter delivery that this action was brought. Defendant set up a counterclaim for damages from failure of plaintiff to deliver according to its contract. As a reply thereto plaintiff alleged that delivery was prevented by strikes and a fire within the meaning of a clause in the contract reading: “ This contract is contingent upon strikes, fires, pestilence, riots, war, rebellion and other causes beyond our control.”