Gash v. Hammer

RICHARDS, J.

This action is one in which the plaintiff seeks to recover the sum of $1,610, damages for the alleged breach of a written contract between the parties hereto for the sale and delivery by the defendants to plaintiff of a carload of California cranberry beans. The complaint alleges that on the second day of August, 1913, at the city of New York, the plaintiff and the defendants entered into a written contract whereby said defendants agreed to sell and deliver and said plaintiff agreed to purchase a carload containing 40,000 pounds of new crop choice, recleaned California cranberry beans at a price of $4.25 net per hundred

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pounds, delivered free on board steamer at San Francisco, California, to be shipped thence to New York and to be paid for by drafts at ten days’ sight; that prior to the time of arrival of said beans at New York and prior to the time when said plaintiff could have had an opportunity to examine said beans the draft for their purchase price arrived and was paid by the plaintiff; that when said consignment of beans arrived at New York in the month of December, 1913, and were examined by plaintiff it was found that said beans were not of the kind and quality called for in said contract, but were in fact Manchurian beans of inferior quality. Plaintiff therefore rejected the same, and notified defendants of such rejection, and demanded that the controversy thus arising between the parties be settled by arbitration as in said agreement provided, but the said defendants have refused to arbitrate said controversy or to respond to the demand of plaintiff for reimbursement of the damages sustained by the defendants’ breach of their agreement.

The defendants in their answer expressly admitted the truth of the paragraph in the plaintiff’s complaint wherein it was alleged that the defendants agreed to sell and deliver to said plaintiff a carload containing about 40,000 pounds of California cranberry beans; but they denied the breach of said agreement, and, on the other hand, alleged that in the month of December, 1913, they shipped to the plaintiff one carload of Manchurian beans, which were choice, recleaned cranberry beans grown in California, and were both of the quality and variety specified and called for in said contract and were in merchantable condition. The defendants further denied that they refused to arbitrate any controversy between themselves and the plaintiff as to the kind or quality of said beans, and denied that the plaintiff suffered any damages whatsoever.