Passaic Metal Products Co. v. O'Brien Bros. Slate Co. , 15 N.J. Misc. 278 ( 1937 )

Per Curiam.

The plaintiff appeals from a judgment in favor of the defendant. On November 11th, 1935, defendant agreed to sell to the plaintiff slate, shipments to be made when notified. The purchase was for resale to the PWA authorities. The plaintiff was unable to make resale and the defendant’s agent was requested to assist plaintiff in making the sale. He tried, but was unable to accomplish anything because of the hopelessness of the situation. Thereafter, the defendant twice wrote to the plaintiff asking advice as to when it might expect shipping orders. Hearing nothing further from the plaintiff, it resold the squares after the plaintiff’s agent had, by conversation of January 28th, 1936, advised it that it was unable to go through with the order but would try and get defendant another order to make up for it. The market price having advanced in May, the plaintiff requested immediate delivery. The defendant refusing, the plaintiff purchased in the open market and sued for the balance. The judgment must be affirmed. The proofs clearly indicate a mutual cancellation of the contract as found by the trial court.

The judgment will be affirmed, with costs.