Parish & Bingham Corp. v. Larrabee-Deyo Motor Truck Co.

Headnote

Contract — sale — action to recover balance due for goods sold and delivered — counterclaim for damages from failure to deliver goods at time specified.

Parish & Bingham Corp. v. Larrabee-Deyo M. T. Co., 215 App. Div. 845 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 12, 1926, modifying and affirming as modified a judgment in favor of defendant entered upon the report of a referee. Plaintiff brought this action to recover a balance due from the defendant on the purchase price of a quantity of motor truck frames manufactured, sold and delivered by plaintiff to the defendant during the years 1920 and 1921, in pursuance of a written contract between the parties made in October, 1919, which contained an express warranty that the frames would be delivered on or before February 1, 1920. The defendant admitted the correctness of the balance claimed to be due and counterclaimed for special damages suffered by reason of plaintiff’s breach of warranty to deliver the frames within the time specified by reason of which failure it was alleged the defendant was unable to fulfill its agreements to manufacture and deliver trucks to customers who canceled their orders on account of nondelivery.