Clark v. . Fey
New York Court of Appeals
Appeal from judgment of the General Term of the ¡Supreme Court in the first judicial department, entered upon an order made January 28, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at circuit. This action was brought to recover damages for an alleged breach of a written contract for the sale by plaintiffs to John Fey, defendant’s intestate, of 500 tons of “ old iron ‘ T ’ rails ” at $37.50 per ton.
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Appeal from judgment of the General Term of the ¡Supreme Court in the first judicial department, entered upon an order made January 28, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at circuit. This action was brought to recover damages for an alleged breach of a written contract for the sale by plaintiffs to John Fey, defendant’s intestate, of 500 tons of “ old iron ‘ T ’ rails ” at $37.50 per ton. The terms of the contract as to delivery and payment were as follows: “ Delivery. Shipment from the other side January or February or March,…
1Opinion of the CourtFinch, J.
It is not disputed that the rails, which were finally tendered to the vendee and then sold for his account and risk, producing a deficiency below the contract price, which deficiency forms the subject of the action, were not the rails which the vendee bought and the vendors sold. By the original written contract those rails were to be 500 tons shipped “ from the other side, January or February or March, seller’s option.” It is the settled rule that, in a case like the present, the date of the shipment is a material element in the identification of the property. (Hill v. Blake, 97 N. Y. 216;…
2Cases cited1 opinion
- Hill v. . BlakeNew York Court of Appeals · 1884
3Cited by15 opinions
- Stamey v. HempleCourt of Appeals for the Ninth Circuit · 1910
- Abe Stein Co. v. . RobertsonNew York Court of Appeals · 1901
- Young v. FoxAppellate Division of the Supreme Court of the State of New York · 1898
- Penn-American Plate Glass Co. v. Harshaw, Fuller & Goodwin Co.Indiana Court of Appeals · 1910
- Browne v. . PatersonNew York Court of Appeals · 1901
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