Deveso v. Chandler — 241 N.Y. 559

Majority

p. 559

Frank Deveso, Respondent, v. John W. Chandler, Appellant. Larkin & Company, Respondent, v. John W. Chandler, Appellant.

Headnote

Contract — sale — action to recover for failure to deliver merchandise sold “ F. O. B.”— defense that it was duty of plaintiff to offer payment at place of shipment.

Deveso v. Chandler, 210 App. Div. 684 , affirmed.

Larkin & Co. v. Chandler, 210 App. Div. 684 , affirmed.

(Argued October 21, 1925;

decided November 24, 1925.)

Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 21, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The actions were to recover for alleged failure to deliver potatoes sold by the defendant to the plaintiffs to be delivered “ F. O. B.” Exmore, Virginia. The

p. 560

defense was that no place of payment having been specified in the contract payment and delivery were concurrent conditions and that it was the duty of the plaintiffs or their agents to have been personally present at Exmore, Va., on the dates of delivery and offered then and there the purchase price of the potatoes.

Walter C. Newcomb for appellant.

Morey C. Bartholomew for respondents.

Judgment in each case affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.