Howe v. Hausman — 240 N.Y. 700

Majority

p. 700

Henry S. Howe et al., Copartners under the Firm Name of Lawrence & Co., Respondents, v. Morris Hausman et al., Copartners under the Firm Name of Morris Hausman & Son, Appellants.

(Argued June 9, 1925;

decided July 15, 1925.)

Headnote

Contract — action to recover for failure to accept merchandise alleged to have been purchased — defense that goods were sold at “ guaranteed prices ” which plaintiffs refused to accept.

Howe v. Hausman, 210 App. Div. 846 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1924, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict. The action was to recover damages for a claimed breach of contract arising out of the defendants’ alleged failure to accept and pay for merchandise ordered from the plaintiffs. The answer put in issue every material allegation of the complaint and for a separate defense alleged that the materials described in the complaint were sold upon the agreement and as a condition thereof that the price to be paid therefor was the price

p. 701

at which plaintiffs sold or agreed to sell to other customers similar goods on the date of the actual billing of said goods to the defendants; and that the defendants were at all times ready, able and willing to accept and pay for the goods described in the complaint in accordance with that agreement, but that the plaintiffs refused to deliver the goods.

Terence J. McManus and Samuel Greenbaum for appellants.

Chandler Bennitt for respondents.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.