L. B. Foster Co. v. Fox

Plaintiff contracted to sell to defendants 750 size “ A ” Reading Rerailers. Deliveries were in installments; two installments were accepted and paid for. Defendants refused to specify deliveries for the third installment and plaintiff, claiming that there was no market, sold the implements as junk.

The burden, therefore, rested upon plaintiff to prove that the articles which it so resold complied with the description of the contract. (Chemung Iron & Steel Co. v. Smith & Hemenway, Inc., 203 App Div. 624.) There was no proof to this effect in plaintiff’s case in chief, for plaintiff’s witness…