Michaelson v. Thomas

Appellate Division of the Supreme Court of New York

Michaelson v. Thomas

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

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

DecidedSeptember 25, 1940

StatusPublished

This text of 260 A.D. 832 (Michaelson v. Thomas) 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

Michaelson v. Thomas, 260 A.D. 832, 22 N.Y.S.2d 364, 1940 N.Y. App. Div. LEXIS 4872 (N.Y. Ct. App. 1940).

Pincite

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.

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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.

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Bluebook (online)

260 A.D. 832, 22 N.Y.S.2d 364, 1940 N.Y. App. Div. LEXIS 4872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michaelson-v-thomas-nyappdiv-1940.