Hughes v. Constantin

139 N.Y.S. 865

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 7, 1913
• Status: Published

Opinion

LEHMAN, J.

The plaintiff seeks to recover for the sale and delivery of certain calendars ordered by the defendant. The order was in writing, upon a printed blank of defendant whi'ch contains the words:

“The said mdse, to be delivered about-190—. We pay no freight or express charges. All goods f. o. b. Boston.”

The defendant claims that the blank for the date contains the words “20 Dec.,” but a careful examination of the order and carbon copy, I think, shows clearly that the date of delivery was “30 Dec.” The goods were shipped from Boston on December 22d and received in New York on December 26th.

[1] The defendant was permitted to testify that at the time the order was given he told the salesman that the calendars were ,intended for the Christmas trade and must be delivered before December 20th. This evidence was clearly incompetent, and tended to vary the written term that delivery was to be made “about” December 30th.

[2] Even if the date of delivery of the order was “about 20 December,” the contract called for a shipment f. o. b. Boston. The goods were shipped on December 22d, and, unless the word “about” is to be entirely disregarded, this delivery was in time.

Judgment should be reversed, with costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.. All concur.