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IV. PERFORMANCE OF CONTRACT.
Even if no time was specified by defendant for supplying of information as to sizes of certain grilles ordered by plaintiff, delay for nearly four months in informing defendant as to the sizes was unreasonable, and defeated an action for nondelivery.—Id.
52(5) (N.Y.Sup.) In action for breach of contract to deliver goods, correspondence between the parties held to show such material variation between plaintiff's order and defendant's alleged acceptance as to preclude a find-172 (N.Y.) Where a seller of materials ing of a meeting of minds.-Raisler Heating Co. v. Clinton Wire Cloth Co., 168 N. Y. S.
II. CONSTRUCTION OF CONTRACT.
77 (N.Y.Sup.) Buyer of automobile under executed contract of sale, notwithstanding its exclusion provision, held entitled to recover a fixed amount under seller's profit-sharing plan. -Ford v. Ford Motor Co., 168 N. Y. S. 176.
loses the benefit of a guaranty of payment or the buyer, it is excused from delivery, and it is not required to change a credit contract by offering to deliver for cash.-Hanna v. Florence Iron Co. of Wisconsin, 118 N. E. 629, 222 N. Y. 290.
176(1) (N.Y.Sup.) Parties to contract to deliver goods on certain date can waive default as to such delivery and hold contract open.Schultz v. Glickstein, 168 N. Y. S. 490.
81(2) (N.Y.Sup.) Where a contract is si-177 (N.Y.Sup.) A buyer cannot refuse goods lent as to the date of delivery of merchandise under one contract, because the seller has or the payment therefor, the law will imply a breached another.-Doxey v. Coates, Bennett & term that both acts shall be performed within Reidenbach, 168 N. Y. S. 76. a reasonable time.-Diamond v. Agency of Ca-179(3) (N.Y.Sup.) Under Personal Property nadian Car & Foundry Co., 168 N. Y. S. 695. Law, §§ 129, 130, as added by Laws 1911, c 82(2) (N.Y.Sup.) Where a contract is si- 571, buyer held, by acceptance of a number of lent as to the date of delivery of merchandise shipments and failure to promptly make claim or the payment therefor, the law will imply a for damages for delay in delivery, to have waived term that both acts shall be performed within any rights to recover for seller's breach of cona reasonable time.-Diamond v. Agency of tract.-Mason v. Valentine Souvenir Co., 168 Canadian Car & Foundry Co., 168 N. Y. S. 695. N. Y. S. 159. 87 (3) (N.Y.Sup.) In action for balance due on purchase price of adding machine, evidence as to terms of contract held to justify finding that defendant had no right to return machine without cause.-American Can Co. v. Grassi Contracting Co., 168 N. Y. S. 689.
III. MODIFICATION OR RESCISSION
(B) Rescission by Seller.
180(2) (N.Y.Sup.) Where a buyer accepts a part of the goods, knowing the seller will not perform his contract in full, he must pay for them at the contract price (Personal Property Law, § 125, subd. 1, as added by Laws 1911, c. 571).-Doxey v. Coates, Bennett & Reidenbach, 168 N. Y. S. 76.
(D) Payment of Price.
194 (N.Y.Sup.) Although a buyer was in default for failure to pay for flour under a contract for common flour, it could not affect ob99 (N.Y.Sup.) Where plaintiff agreed to buy ligations of parties under a contract for rye pipe for cash, and some pipe was delivered, but flour.-Wilfand v. Zwerner, 168 N. Y. S. 504. cash was not paid, and defendant failed to de:196 (N.Y.Sup.) Under contract of sale liver the remainder of the pipe, but never stated that payment must be made within a certain time, or the contract would be rescinded, defendant could not assert a breach by plaintiff.Pipe & Contractors' Supply Co. v. Mason & Hanger Co., 168 N. Y. S. 740.
(C) Rescission by Buyer.
117 (N.Y.Sup.) A contract of sale of steel scrap, specifying shipment to be made "prompt," permits less delay than one for delivery within a reasonable time; and it being the custom under such contracts to deliver within 30 days, where the seller places himself in a position so he cannot complete the delivery within such time, the buyer may rescind.-Doxey v. Coates, Bennett & Reidenbach, 168 N. Y. S. 76.
made January 8th, under which seller on January 17th told buyer he might bring check on or before January 20th, tender of payment on January 18th held made within a reasonable time.-Diamond v. Agency of Canadian Car & Foundry Co., 168 N. Y. S. 695.
V. OPERATION AND EFFECT. (D) Bona Fide Purchasers. 234 (2) (N. Y. Mun. Ct.) Under Personal Property Law, $ 104, as added by Laws 1911, c. 571, providing that, where goods are sold by one not the owner without the owner's consent, the buyer acquires no better title than the seller had, unless the owner of goods is by his conduct precluded from denying the author
ity, the term "goods" does not include an au- | ten in December, to which there was no reply, or tomobile in possession of a chauffeur.-Canales action taken, forecloses any claim by the buyer v. Earl, 168 N. Y. S. 726.
VII. REMEDIES OF SELLER. (E) Actions for Price or Value. 340 (N.Y.Sup.) Seller's election, if from storing goods and attempting to sue for the price, held not to prevent action for difference between price and amount for which goods were resold.-L. Schepp Co. v. Far Eastern Mfg. Co., 168 N. Y. S. 636.
that he did not know until March that the sellers had breached their contract, and hence the market price in March cannot be considered in fixing damages for nondelivery.-Id.
418(2) (N.Y.Sup.) Where plaintiff sold underwear to defendants and failed to deliver it, and plaintiff's agent continuously asked slight extensions from September to April, and defendants purchased on the market at advance in April, the difference between the contract price and the market price in April could be considered on measure of damages.
Samuel Quint Co. v. Goodman, 168 N. Y. S. 638.
After seller had elected to store goods for buyer and sue for price, resale held not to prevent action for price, subject only to counterclaim for damages caused by wrongful act.-Id. 345 (N.Y.Sup.) Where plaintiff and defend-418(10) (N.Y.Sup.) Where seller refused to ant contracted for sale of fixtures, whereby de- deliver coal except at advance and did not, even fendant was to pay a balance due concurrently at advanced price, deliver all coal contracted with delivery of bill of sale, plaintiff's failure for, buyer may for coal not delivered recover to prove a tender by him prior to bringing ac- difference between contract price and market tion is fatal to recovery of balance due.-Wein- price, but as to coal delivered may recover only difference between contract price and that paid. shank v. Shack, 168 N. Y. S. 7. -Hencken & Willenbrock Co. v. Rosenwasser Bros., 168 N. Y. S. 1097.
VIII. REMEDIES OF BUYER.
(A) Recovery of Price.
391 (9) (N.Y.Sup.) Where plaintiff sought to purchase machinery from defendant and offered a guarantor of its contract, but being unable to secure a guarantor made a new agreement to pay certain sums before delivery of the machinery, and it paid first payment, but failed to pay the others, it could not recover the amount actually paid.-Trundle v. James Beggs & Co., 168 N. Y. S. 785.
(C) Actions for Breach of Contract.
406 (N.Y.Sup.) In action for breach of contract to deliver flour, held, cancellation of contract by seller constituted breach, which absolved buyer from duty to make tender before bringing suit.-Wilfand v. Zwerner, 168 N. Y. S. 564.
413 (N.Y.Sup.) In action for breach of contract to deliver lumber, variance between allegations that eight cars were to be delivered
and contract calling for four cars was not fatal, where the contract further provided for a repeat order.-Blair & Rolland v. Turner, 168 N.
Y. S. 669.
417 (N.Y.Sup.) In action for failure to deliver 10,000 skins at 621⁄2 cents, pursuant to written contract which did not specify grade or quality, verdict based on market price higher than minimum was not supported by evidence, there being no evidence with reference to a custom as to the grade and quality of skins in the locality of the sale.-Kohn & Baer v. I. Ariowitsch Co., 168 N. Y. S. 909.
418(2) (N.Y.Sup.) Where there was breach of contract in failing to deliver goods on a certain date, the measure of damages was the difference between the contract price and the market price on that date.-Schultz v. Glickstein, 168 N. Y. S. 490.
418(12) (N.Y.Sup.) Upon proof, a buyer is entitled to the loss of profits on a resale of rescinded because of seller's breach.-Doxey_v. which the seller knew. where buyer's vendee Coates, Bennett & Reidenbach, 168 N. Y. S. 76. (D) Actions and Counterclaims for Breach of Warranty.
426 (N.Y.Sup.) Where sale was by sample, right of action on warranty survived acceptance of the goods, the privilege of inspection being but a cumulative remedy.-Meyer v. Rottenberg, 168 N. Y. S. 630.
442 (13) (N.Y.Sup.) Where seller knew buyer was buying for immediate resale on an the resale profits lost through the seller's order already received, the buyer could recover breach, where the buyer could not fill the order in the general market.-Meyer v. Rottenberg, 168 N. Y. S. 630.
IX. CONDITIONAL SALES. 472 (2) (N.Y.Sup.) A agreement, when not filed by the vendor, is void against a subsequent mortgagee in good faith under Personal Property Law, § 62.Auto Mortgage Co. v. Montigny, 168 N. Y. S. 670.
479(14) (N.Y.Sup.) Under Personal Property Law, §§ 65, 66, requiring conditional vendor, retaking goods, to hold them for 30 days and sell within the following 30 days, notice of sale may be given within the first 30 days.-Freeman v. Engel, 168 N. Y. S. 1014.
See Accord and Satisfaction; Compromise and
A letter, "We want the rest of those bottles as soon as you can send them in, and see no valid reason why you should be holding them," writ-See Banks and Banking, 293-309.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
SHERIFFS AND CONSTABLES.
See Landlord and Tenant, 312,
See Pleading, 167.
See Theaters and Shows.
See Libel and Slander.
See Civil Rights,
5; Constitutional Law, 74, 181, 186, 194, 216, 3, 74.
See Injunction, 57, 60; Pleading, 403.
10(1) (N.Y.Sup.) A court of equity cannot compel an adoption in the property aspect only, pursuant to an agreement, as the statute does not provide for a partial adoption.-Erlanger v. Erlanger, 168 N. Y. S. 928.
12 (N.Y.Sup.) Specific performance of contract to convey will not be denied because of building restrictions personal to a grantor whose rights in property had been foreclosed under a mortgage.-Patterson v. Johnson, 168 N. Y. S.
II. CONTRACTS ENFORCEABLE.
28(2) (N.Y.Sup.) A provision in a proposed lease to improve the said property to the extent of no less than $10,000" is too indefinite to be specifically enforced.-H. M. Weill Co. v. Creveling, 168 N. Y. S. 385.
29(2) (N.Y.Sup.) In action to recover part of purchase price for vendor's failure to give marketable title, defendant's counterclaim, alleging modification of contract and seeking dam-31 (N.Y.Sup.) A lease containing a clause ages for broker's commissions, held insufficient. by appraisal by experts, which did not state the that rent for certain years should be regulated -Bloom v. Sutton, 168 N. Y. S. 403. number of experts, who should select them, or what would be done if they disagreed. was too incomplete to be specifically enforced.-H. M. Weill Co. v. Creveling, 168 N. Y. S. 385.
Y. S. 403.
34(2) (N.Y.Sup.) In action to recover part of purchase price for vendor's failure to give marketable title, vendor's counterclaim for wrongful filing of contract after vendee's default could not be interposed; it alleging a tort62 (N.Y.Sup.) A memoranda of an not arising out of contract or transaction set ment to deliver a lease constituted only an forth in complaint.-Bloom v. Sutton, 168 N. agreement to agree, and was therefore unenforceable by specific performance.-H. M. Weill Co. v. Creveling, 168 N. Y. S. 385. 40 (N.Y.Sup.) Under Code Civ. Proc. § 501,86 (N.Y.Sup.) Under Domestic Relations subds. 1, 2, counterclaim under subdivision 1 arising out of the same contract or transaction, or connected with the subject of the action, need not have been in existence when the action was commenced.-Pierce v. Massman, 168 N. Y. S. 1029.
Law, §§ 110, 112, 114, specific performance of
IV. PROCEEDINGS AND RELIET.
120 (N.Y.Sup.) In an action to specifically enforce a contract, evidence is admissible to explain ambiguities in the instrument, to explain the meaning of the terms actually employed, but not to supply an agreement as to matters on which there had been no meeting of the minds.H. M. Weill Co. v. Creveling, 168 N. Y. S. 385.
See Municipal Corporations, 707.
See Intoxicating Liquors.
See Courts, 97.
See Officers, 69.
DEBT, AND SECURITIES.
For statutes relating to particular subjects, see
I. ENACTMENT, REQUISITES, AND
64(7) (N.Y.Sup.) Code Civ. Proc. § 1780, authorizing actions against foreign corporations, held valid as applied to corporations doing business within the state, though broad enough to cover those not doing business in the state.Interocean Forwarding Co. v. Charles R. McCormick & Co., 168 N. Y. S. 177.
VI. CONSTRUCTION AND OPERA
(A) General Rules of Construction. 181(2) (N.Y.Sup.) Statutes are interpreted N. Y. S. 472.
114 (N.Y.Sup.) Laws 1915, c. 658, author- workably. People ex rel. Glick v. Russell, 168 izing the Court of Claims to determine and pay222 (N.Y.Sur.) The common law governs the the claim of a certain state employé for personal injuries, held within the power of the Legisla- meaning of words in statutes, unless the statute ture to make a moral obligation a legal one.- provides otherwise.-In re Green's Estate, 168 N. Y. S. 364. Munro v. State, 168 N. Y. S. 61.
119 (N.Y.Sup.) Laws 1915, c. 658, empow- VII. PLEADING AND EVIDENCE. ering the Court of Claims to determine and pay the claim of a certain state employé for per-281 (N.Y.Sup.) An allegation that "in and sonal injuries against the state, held not in vio- by the law of Mexico it was then and there lation of Const. art. 8, § 9, prohibiting loan of provided,' and an allegation "it is also" the credit of state.-Munro v. State, 168 N. Y. S. law, are too vague to show that the law was in 61. effect at the time in question.-Colcord v. Banco de Tamaulipas, 168 N. Y. S. 710.
Laws 1915, c. 658, empowering the Court of Claims to determine the suit of a certain state employé against the state for personal injuries, held not in violation of Const. art. 3, § 20, prohibiting loan of money by the state.-Id.
V. CLAIMS AGAINST STATE. 175 (N.Y.Sup.) Under Code Civ. Proc. § 264, claim or notice in Court of Claims against the state for damages to property in the construction of a state highway held not to state a cause of action.-Konner v. State, 168 N. Y. S. 345.
177 (N.Y.Sup.) Notice of intention to file claim against state for damages due to negligence is a disclaimer of intention to file claim for same damages growing out of an alleged trespass, and claimant cannot at the trial file a claim for damages on ground of trespass.Konner v. State, 168 N. Y. S. 345.
Art. 1, §§ 10-12-168 N. Y. S. 463.
CODE OF CIVIL PROCEDURE.
§ 264-168 N. Y. S. 345.
382, subsec. 1-168 N. Y. S. 361. §§ 388, 389-168 N. Y. S. 463. 398-168 N. Y. S. 1028.
178 (N.Y.Sup.) Laws 1915, c. 658, empowering the Court of Claims to hear, audit, and determine the claim of a certain state employé for personal injuries against the state, held not§ in violation of Const. art. 3, § 19, prohibiting the Legislature to allow claims, etc.-Munro v. State, 168 N. Y. S. 61.
STATUTE OF FRAUDS.
See Frauds, Statute of.
STATUTE OF LIMITATIONS.
See Limitation of Actions.
403-168 N. Y. S. 361.
501, subsecs. 1, 2-168 N. Y. S. 1029.
$$ 655, 677-168 N. Y. S. 701.
768-168 N. Y. S. 407.
812. Amended by Laws 1901, ch. 524168 N. Y. S. 944.
817-168 N. Y. S. 923.
§829-118 N. E. 207, 222 N. Y. 14; 168 N.
Y. S. 361.
§ 911-168 N. Y. S. 626.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
997-168 N. Y. S. 187.
1021-168 N. Y. S. 755.
1214-1216-168 N. Y. S. 876.
DECEDENT ESTATE LAW (Cп. 13).
§ 17-168 N. Y. S. 199.
1338-118 N. E. 207, 222 N. Y. 14; 118 N. 21-168 N. Y. S. 937.
E. 513, 222 N. Y. 155.
1642-168 N. Y. S. 755. 1780-168 N. Y. S. 177.
2032, 2034-168 N. Y. S. 704. 2122-168 N. Y. S. 59.
2253-118 N. E. 216, 222 N. Y. 47; 118 N.
E. 620, 222 N. Y. 248.
§§ 2256, 2258-118 N. E. 216, 222 N. Y. 47. 2441-168 N. Y. S. 405.
2653A-168 N. Y. S. 264.
3251, subsec. 1-168 N. Y. S. 923.
3268, subsec. 4-168 N. Y. S. 461.
Code of Civil Procedure, 88 2472-2771, as Amended and Renumbered in 1914 (Surrogate's Code).
2490-168 N. Y. S. 142, 382.
§ 2510-168 N. Y. S. 382.
§§ 2538, 2539-168 N. Y. S. 131. 2569-168 N. Y. S. 586.
2611-168 N. Y. S. 382, 890.
2614-168 N. Y. S. 131, 382.
2675-168 N. Y. S. 586.
2753. Amended by Laws 1916, ch. 596-168 N. Y. S. 970.
CODE OF CRIMINAL PROCEDURE.
CONSERVATION LAW (CH. 65).
$$ 96, 99-168 N. Y. S. 952.
DOMESTIC RELATIONS LAW (CH. 14).
70-168 N. Y. S. 433.
110-168 N. Y. S. 928.
§ 111. Amended by Laws 1915, ch. 352-168 N. Y. S. 142.
$ 112-168 N. Y. S. 928.
§§ 112, 113. Amended by Laws 1915, ch. 352 -168 N. Y. S. 142.
§ 114-168 N. Y. S. 826, 928.
ELECTION LAW (CH. 17).
§ 82 added by Laws 1911, ch. 891. Amended by Laws 1913, ch. 820-168 N. Y. S. 71.
§ 369. Amended by Laws 1913, ch. 821-168 N. Y. S. 968.
§ 381-168 N. Y. S. 398.
$500 et seq.-168 N. Y. S. 391.
§ 510-168 Ń. Y. S. 391.
$ 510. Amended by Laws 1917, ch. 815-168 N. Y. S. 391.
§ 178 added by Laws 1912, ch. 318-168 N. Y. § 121-118 N. E. 523, 222 N. Y. 121. S. 203.
§ 191 added by Laws 1912, ch. 318. Amended
JUDICIARY LAW (CH. 30).
by Laws 1916, ch. 521-168 N. Y. S. 203. § 773-168 N. Y. S. 701.