Opinion
June, 1911.
Edgar N. Dollin, for appellant.
George A. Hoffman, for respondent.
Plaintiff seeks to recover the purchase price of the balance of goods alleged to have been bought by the defendant under a contract between the parties. The learned trial judge awarded judgment in plaintiff's favor for the full amount.
Defendant sent to plaintiff an order for twelve gross of goods to be delivered one gross per month. This order was never accepted by plaintiff which, therefore, never agreed to deliver the goods.
After plaintiff had delivered a number of installments, the defendant wrote, in substance, that it would receive no more of these goods. There was also a tender of some of the goods by plaintiff at or about this time. No binding executory agreement arose from the transaction. White v. Kingston Motor Car Co., 69 Misc. 627, and cases therein cited. The mere delivery of some installments under this order did not change its character. Chicago G.E.R. Co. v. Dane, 43 N.Y. 240; Quick v. Wheeler, 78 id. 300.
To the extent that goods were delivered or properly tendered before defendant cancelled the order, the plaintiff may be entitled to payment as upon an executed contract; but no recovery can be had on the agreement as an executory one. As the judgment, therefore, is manifestly based upon a misconception of the character of the cause of action and of the amount of damages to which plaintiff may be entitled, it must be reversed.
Defendant claims that, by means of a previous action not prosecuted to judgment, the plaintiff has elected a remedy inconsistent with the present one; but I find that there has been no such election, because, apart from any other consideration, the complaint in the first action is so vague and indefinite as to render it quite impossible to understand on what theory it was drawn, or to warrant any just inference as to the course pursued or position taken by plaintiff before the first action was brought.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Present: SEABURY, GUY and BIJUR, JJ.
Judgment reversed.