Frank Hemingway, Inc. v. Marden, Orth & Hastings Co. 231 N.Y. 584

Frank Hemingway, Inc., Respondent, v. Marden, Orth & Hastings Company, Inc., Appellant.

Contract — action for breach — damages.

Hemingway,Inc., v. Marden, Orth & Hastings Co., Inc., 190 App. Div. 902, affirmed.

(Argued May 6, 1921;

decided May 31, 1921.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 20, 1920, modifying and affirming as modified a judgment in favor of plaintiff entered upon *585a verdict. The action was brought to recover damages for the breach of a contract made on October 19, 1916, whereby the defendant agreed to sell to the plaintiff 12,000 pounds of H. acid, to be delivered at the port of New York in the month of November, 1916, at one dollar and ninety cents per pound. The defendant failed to make any delivery during November, 1916, but subsequently made delivery of 937 pounds, leaving a balance of 11,063 pounds which have never been delivered. The only question litigated was that of damages — whether fixed as of the time for delivery stipulated by the contract or as of the time to which performance of the contract was postponed.

Edward N. Perkins for appellant.

Harry M. Marks for respondent.