Valley Forge Flag Co. v. New York Dowel & Moulding Import Co.

Burton S. Sherman J.

In a classic contract action, the plaintiff buyer sues the seller for failure to deliver. The plaintiff then purchased goods on the open market and seeks as damages the difference between the contract price and the subsequent purchase price. These facts are undisputed. However, the defendant alleges that the goods were totally destroyed oh shipboard during a heavy storm in transit from Malaysia and therefore it is not liable under the contract. It relies upon section 2-613 of the Uniform Commercial Code which states in pertinent part: "Where the contract requires for its…