Gunderson v. Kenyon

Appellate Division of the Supreme Court of New York

Gunderson v. Kenyon

253 A.D. 306, 2 N.Y.S.2d 1, 1938 N.Y. App. Div. LEXIS 8427

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 11, 1938

StatusPublished

This text of 253 A.D. 306 (Gunderson v. Kenyon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gunderson v. Kenyon, 253 A.D. 306, 2 N.Y.S.2d 1, 1938 N.Y. App. Div. LEXIS 8427 (N.Y. Ct. App. 1938).

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Opinion

Townley, J.

This action was brought by the alleged buyer of cotton twine against the alleged sellers, for damages for failure to deliver any goods. The plaintiff claims that he ordered on various days in May and June of 1933, some thirty-three separate items of cotton twine specifically set forth in the schedule annexed to the complaint. It is claimed that the defendants on each occasion accepted these orders. The defendants plead the Statute of Frauds, claiming that there is no memorandum in writing by the person to be charged, acknowledging the acceptance of the orders. The orders all provided for definite shipping dates. The letter of defendants which is supposed to be an acceptance advises that the defendants have received an acceptance of the orders from the mills “ to be shipped at the mills’ convenience.” In other words, the “ acceptance ” was not in the terms of the orders on a most important detail because time of delivery, as it appears from this record, was of the essence of the contracts. The so-called acceptance, therefore, constituted a counter offer for delivery at the mills’ convenience. This was not satisfactory to, and never accepted by, the plaintiff or the plaintiff’s customers. Accordingly, the plaintiff has proved no enforcible contract against defendants.

It is unnecessary to discuss the question whether plaintiff was principal in the transaction or whether, as broker for other clients, he was entitled to maintain this action in the absence of any assignment from those clients of such causes of action for failure to deliver as they may have had. It is also unnecessary to determine whether the defendants were agents for disclosed principals or were principals selling on their own behalf.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Martin, P. J., O’Malley, Cohn and Callahan, JJ., concur.

Judgment unanimously reversed, with costs, and the complaint dismissed, with costs.

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Townley, J.

This action was brought by the alleged buyer of cotton twine against the alleged sellers, for damages for failure to deliver any goods. The plaintiff claims that he ordered on various days in May and June of 1933, some thirty-three separate items of cotton twine specifically set forth in the schedule annexed to the complaint. It is claimed that the defendants on each occasion accepted these orders. The defendants plead the Statute of Frauds, claiming that there is no memorandum in writing by the person to be charged, acknowledging the acceptance of the orders. The orders all provided for definite shipping dates. The letter of defendants which is supposed to be an acceptance advises that the defendants have received an acceptance of the orders from the mills “ to be shipped at the mills’ convenience.” In other words, the “ acceptance ” was not in the terms of the orders on a most important detail because time of delivery, as it appears from this record, was of the essence of the contracts. The so-called acceptance, therefore, constituted a counter offer for delivery at the mills’ convenience. This was not satisfactory to, and never accepted by, the plaintiff or the plaintiff’s customers. Accordingly, the plaintiff has proved no enforcible contract against defendants.

It is unnecessary to discuss the question whether plaintiff was principal in the transaction or whether, as broker for other clients, he was entitled to maintain this action in the absence of any assignment from those clients of such causes of action for failure to deliver as they may have had. It is also unnecessary to determine whether the defendants were agents for disclosed principals or were principals selling on their own behalf.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Martin, P. J., O’Malley, Cohn and Callahan, JJ., concur.

Judgment unanimously reversed, with costs, and the complaint dismissed, with costs.

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Bluebook (online)

253 A.D. 306, 2 N.Y.S.2d 1, 1938 N.Y. App. Div. LEXIS 8427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunderson-v-kenyon-nyappdiv-1938.