Schopflocher v. Machenbach

120 N.Y.S. 866

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 27, 1910
• Status: Published

Opinions

LEHMAN, J.

Although the transaction is somewhat involved and the testimony somewhat confused, I think that the inference can be fairly drawn from the evidence that the defendant, on March 4 and 18, 1907, ordered goods from the plaintiffs, which were to be manufactured or procured by the plaintiffs’ Japanese correspondents. It was contemplated by the parties that the orders were not to be absolute until the plaintiffs’ letters to their correspondents should arrive in Yokohama. Apparently on March 18th the defendant had determined to take at least the quantity ordered on March 4th, and the order to that extent became binding upon the receipt of the letter of that date in Yokohama. The intent of the parties, however, was to enter into a larger binding contract before the arrival in Yokohama of the letter of March 18th, which contract should include at least the order of March 4th. On April 9th, and just previous to the arrival of the letter of March 18th in Yokohama, the parties seem to have agreed that the entire orders of March 4th and March 18th should be binding, and all these goods are included in the contract which became effective on that date. ■ While there is a sharp conflict of testimony between the parties, and neither side tells a story free from inconsistencies, it seems to me that the verdict is not against the weight of evidence.

The proof of damages properly included the propositions of both March 4th and March 18th, because both were included in the contract of April 9th, and the trial justice excluded evidence as to the order of March 4th only because it became part of the subsequent contract.

The judgment and order should be affirmed, with costs.

GIEGERICH, J., concurs.