Michaelson v. Thomas

260 A.D. 832, 22 N.Y.S.2d 364, 1940 N.Y. App. Div. LEXIS 4872

Opinion

Plaintiff appeals from a judgment on defendants’ counterclaim for $150, the amount óf a cheek, and $1.52, protest fees thereon. Plaintiff brought the action for damages for failure to deliver 1,181 bushels of peaches at $1.25 per bushel which he alleged were of the fair market value of $2.50 a bushel or $2,952.50. The jury under the evidence could properly find and did find that the agreed price of the peaches (estimated at 1,300 bushels) was $1.50 per bushel, and that under the contract as soon as the defendants delivered a truckload the plaintiff was to make immediate payment. Plaintiff at the time the contract was made gave his check for $50 which has not been cashed and is an exhibit in the case. Plaintiffs delivered to defendant 119 bushels of peaches of the contract value of $1.50 per bushel or $178.50. Defendants gave to plaintiff two cheeks, one for $28.50 which was paid upon presentation, the other for $150 upon which plaintiff stopped payment. That act was a breach of the contract and excused defendants from maldng further deliveries and sustains the verdict upon the counterclaim. Judgment unanimously affirmed, with costs. Present — Hill, P. J., Crapser, Bliss, Schenck and Foster, JJ.