Udell v. Cohen

Appellate Division of the Supreme Court of New York

Udell v. Cohen

282 A.D. 685, 122 N.Y.S.2d 552

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

DecidedJune 30, 1953

StatusPublished

This text of 282 A.D. 685 (Udell v. Cohen) 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

Udell v. Cohen, 282 A.D. 685, 122 N.Y.S.2d 552 (N.Y. Ct. App. 1953).

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Opinions

Per Curiam.

This controversy turns on the quantity of merchandise which defendants were to deliver to plaintiff as evidenced by the written memorandum of October 8, 1947.

A court would expect that a memorandum, using the expression “Approx. 10,000 ” as to “ single heaters ” and “ Approx. 10,000 ” as to “ 2 burners ”, would be understandable enough to business men in the quantities contemplated and it seems on its face sufficiently explicit to be enforcible according to its terms, and not to be satisfied by the delivery of such relatively small quantities as 1,756 single and 3,074 double burners.

Defendants contend, however, that the commitment as to quantity was qualified by the clause “ All in perfect condition ” and that all those in perfect condi[686]*686tion were delivered and hence the contract was performed. Plaintiff interprets this clause as a guarantee that the specified number of burners were all in perfect condition.

There is a sufficient ambiguity in this respect to warrant the taking of parol evidence as the court did, as to whether the clause was a representation of quality of all the burners or a qualitative condition limiting the number of burners to be delivered. Assuming that the latter view might be adopted by the court, defendants failed to show the number that was defective and that they delivered all that were in good condition and failed to account for the large discrepancy between the approximate number of burners specified and the number delivered.

In the decision at Trial Term defendants’ counterclaim for reformation of the instrument was dismissed because the court felt that in view of its decision to permit free interpretation of the language, it became unnecessary to reach the need for reformation. Upon a new trial, however, we would regard that question as open and defendants may, if they are so advised, apply to the court at Special Term for the reinstatement of their counterclaim.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

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Per Curiam.

This controversy turns on the quantity of merchandise which defendants were to deliver to plaintiff as evidenced by the written memorandum of October 8, 1947.

A court would expect that a memorandum, using the expression “Approx. 10,000 ” as to “ single heaters ” and “ Approx. 10,000 ” as to “ 2 burners ”, would be understandable enough to business men in the quantities contemplated and it seems on its face sufficiently explicit to be enforcible according to its terms, and not to be satisfied by the delivery of such relatively small quantities as 1,756 single and 3,074 double burners.

Defendants contend, however, that the commitment as to quantity was qualified by the clause “ All in perfect condition ” and that all those in perfect condi[686]*686tion were delivered and hence the contract was performed. Plaintiff interprets this clause as a guarantee that the specified number of burners were all in perfect condition.

There is a sufficient ambiguity in this respect to warrant the taking of parol evidence as the court did, as to whether the clause was a representation of quality of all the burners or a qualitative condition limiting the number of burners to be delivered. Assuming that the latter view might be adopted by the court, defendants failed to show the number that was defective and that they delivered all that were in good condition and failed to account for the large discrepancy between the approximate number of burners specified and the number delivered.

In the decision at Trial Term defendants’ counterclaim for reformation of the instrument was dismissed because the court felt that in view of its decision to permit free interpretation of the language, it became unnecessary to reach the need for reformation. Upon a new trial, however, we would regard that question as open and defendants may, if they are so advised, apply to the court at Special Term for the reinstatement of their counterclaim.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

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Bluebook (online)

282 A.D. 685, 122 N.Y.S.2d 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/udell-v-cohen-nyappdiv-1953.