Varagnolo v. Partola Manufacturing Co.

Headnote

Contract — sale — action to recover for failure to deliver goods sol d — defense of extension of time and prevention of shipment by government.

Varagnolo v. Partola Manfg. Co., 209 App. Div. 347 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 16, 1924, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The action was to recover damages for failure to deliver goods sold by defendant to plaintiff. The complaint alleged that, on or about May 28, 1917, defendant sold and agreed to deliver to plaintiff 1,000 tons of American caustic soda to be shipped by defendant to plaintiff at Genoa, Italy, during the month of June, 1917, for the price of twenty-six dollars and fifty cents per 100 kilos, the cost of freight and insurance, including war risk insurance, to be paid by defendant; payment for the soda to be made by plaintiff against shipping documents through a credit to be opened with the Guaranty Trust Company of New York. Thereafter and in accordance with the terms of the contract plaintiff duly caused a credit to be opened with the Guaranty Trust Company of New York in an amount sufficient to pay for the merchandise and duly maintained the credit; that during the month of June, 1917, defendant wholly failed to ship any part of said caustic soda; that at defendant’s request, plaintiff caused the credit with the Guaranty Trust Company to be extended beyond the month of June, but notified defendant that he reserved all rights against defendant for its failure to make shipment during June; that up to the date of the commencement of this action defendant had shipped no caustic soda under said contract excepting 175 tons which it shipped in August, 1917, and which plaintiff accepted and paid for. The answer

besides a general denial alleged as a partial defense that the contract by mutual consent was “ extended to and including the month of October, 1917, and beyond that time, ” and that during said time the exportation of caustic soda from the United States was prohibited, except upon licenses to be issued as prescribed; that applications for licenses for exportation of the balance of 825 tons of caustic soda to plaintiff were duly and seasonably made on behalf of defendant and denied by the United States authorities and that defendant was thereby without its fault prevented from making shipment.