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Plumb v. J. W. Hallauer & Sons Co.

Supreme Court of New York, Appellate Division

May 3, 1911

WILLIAM H. PLUMB, Appellant,
v.
J. W. HALLAUER & SONS COMPANY, Respondent.

Page 21

APPEAL by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 27th day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Franklin Trial Term, and also from on order bearing date the 4th day of April, 1910, and entered in said clerk's office denying the plaintiff's motion for a new trial made upon the minutes.

COUNSEL

John P. Kellas, for the appellant.

Peter G. Smith, for the respondent.

Page 22

HOUGHTON, J.:

The action is to recover damages for an alleged breach of contract in refusing to accept and pay for five carloads of apples and a balance claimed to be due on eight carloads delivered and accepted.

The plaintiff is a produce buyer and shipper, doing business in Franklin county, and the defendant operates an evaporating and canning factory at Webster in the western part of the State.

The contract was oral, and the plaintiff testified that the defendant's agent asked him if he had apples to sell, and upon his replying that he was a dealer and did have if the price was satisfactory, the defendant finally agreed to pay him seventy cents per 100 pounds for mixed apples and seventy-five cents per 100 pounds for peeling apples delivered on board cars at Webster, and that upon his stating that he had two carloads on hand and inquiring how much more defendant wanted, the agent replied that the defendant was in need of apples and would take as many as he could load and ship. The plaintiff inquired: 'What does that mean--suppose I load and ship fifteen or twenty cars?' to which the agent replied: 'That is all right, we want them; we want all the apples we can get.' The plaintiff inquired as to the manner of payment, and testifies that it was agreed that the plaintiff should draw a sight draft for fifty cents per 100 pounds according to his weighing, and attach it to the bill of lading of each car, and that the defendant would pay the freight and send plaintiff a check for the balance, if any. The plaintiff shipped the two carloads on hand immediately, and proceeded to buy other carloads, and shipped six more, all with draft attached to bill of lading, as agreed, which drafts the defendant paid, as well as the freight charges.

On the second of November the defendant telegraphed the plaintiff to ship no more apples. On the twenty-ninth of October the plaintiff had shipped a car, known as car No. 61878, with draft attached to bill of lading, which was in transit at the time of the sending and receipt of the telegram. The plaintiff had purchased of various growers at the time the telegram was received four carloads more of apples which,

Page 23

disregarding the telegram, he tendered to the defendant and the defendant refused to receive them on the ground that it had purchased no specific number of carloads and had informed the plaintiff to make no further shipments before shipment was made.

With respect to car No. 61878, which was shipped before the telegram was sent, because some prior apples were claimed to have been unmerchantable, the defendant demanded the right to inspect before paying the draft. The plaintiff refused to permit ...


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