Stave & Timber Corp. in Norfolk v. A. H. Andrews Co.
Court of Appeals for the Second Circuit
In Error to the District Court of the United States for the Southern District of New York. Action by the A. H. Andrews Company against the Stave & Timber Corporation in Norfolk, Ya. Judgment for plaintiff, and defendant brings error. Defendant in error (hereinafter called Andrews Co.) contracted in writing with plaintiff in error (hereinafter called Stave Co.) to furnish and erect certain kilns for the artificial drying of lumber.
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In Error to the District Court of the United States for the Southern District of New York. Action by the A. H. Andrews Company against the Stave & Timber Corporation in Norfolk, Ya. Judgment for plaintiff, and defendant brings error. Defendant in error (hereinafter called Andrews Co.) contracted in writing with plaintiff in error (hereinafter called Stave Co.) to furnish and erect certain kilns for the artificial drying of lumber. The kilns, after completion, were' operated by Slave Co,, and a portion of the contract price was paid. This action is for the balance of said price. In iho written…
1Opinion of the CourtHough, Circuit Judge
(after stating the facts as above). We assume with the parties in this case that Andrews Co.’s express warranty of -the kilns survived, and was intended to survive, acceptance, and that under ordinary circumstances defendant’s procedure in counterclaiming for breach of warranty in a suit for the contract price would not be open to objection. This is the ordinary course of law. The question here is whether the agreement of the parties amounts to a binding contract to pursue another and special procedure, which they are presumed to have preferred and chosen.
[ 1 ] As the point has not been…
2Cases cited9 opinions
- Dahlstrom v. . GemunderNew York Court of Appeals · 1910
- Kirschbaum v. . EschmannNew York Court of Appeals · 1912
- Fay & Eagan Co. v. Dudley & SonsSupreme Court of Georgia · 1907
- Bennett v. . Leeds Manufacturing Co.New York Court of Appeals · 1888
- J. L. White Furnace Co. v. C. W. Miller Transfer Co.Appellate Division of the Supreme Court of the State of New York · 1909
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3Cited by1 opinion
- Frigorifico Wilson De La Argentina v. Weirton Steel Co.Court of Appeals for the Fourth Circuit · 1933