Stramiello v. Parsons Trading Co.

142 N.Y.S. 320

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 17, 1913
• Status: Published

Opinion

BIJUR, J.

[1] Defendant ordered goods from plaintiff, to be shipped to one of defendant’s customers. When the goods arrived, they were found to be defective in certain particulars. Defendant so notified plaintiff, who told defendant to do what it could to have the goods accepted, and that plaintiff would pay the expenses or the loss involved. Both by letter and conversations, plaintiff was informed that part of the goods were being “held on the tracks subject to our shipping orders.” This part of the goods was ultimately totally rejected by the customer, whereupon plaintiff told the defendant to ship them to another place, and that he would pay the expense.

[2] The items of expense which the learned court below declined to allow were for freight and demurrage charged by the railroad for occupation of its car. I think that these items were within both the implied and express terms of the plaintiff’s promise to pay the expense, and that they were sufficiently proved, under the circumstances of this case, by defendant’s showing that it had paid the railroad’s bill to that amount and for those items.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.