Rentways, Inc. v. O'Neill Milk & Cream Co.

282 A.D. 924, 125 N.Y.S.2d 282

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1953
• Status: Published

Opinions

Per Curiam.

We find that the agreement involved in the first cause of action may be treated as divisible, and that the performance was in fact divided by the way the delivery and receipt of the trucks were separate as between the small and large trucks. The rental period or term as to the four new, small trucks commenced as of June 1, 1946, and ended on May 31, 1949. The term as to the two large, new trucks commenced October 22, 1946, and ended the same date in 1949. A cancellation as of May 31, 1949, constituted no breach as to the small trucks, but did constitute a breach as to the large trucks, and plaintiff is entitled to its damages on that breach. Prima facie the amount of damages would be $126 a week (two trucks at $63 each) for twenty weeks and three days, or $2,583. From that sum two items must be deducted: (1) the sums received from rentals to others during the period in question with proper adjustment as to the terms of such other rental agreements; and (2) any amounts saved with respect to fuel, maintenance, etc., in failing to use the trucks. If the parties wish to stipulate these two deductions we will order judgment in a specific amount, otherwise the amount to be set off may be fixed on a new trial confined to these items.

Liability on the second cause of action appears to he conceded in the sum of $360.72, without interest.

The judgment should be modified accordingly. Settle order.