Nostane Products Corp. v. Chas. L. Huisking & Co. ( 1941 )

In an action to recover damages for breach of contract wherein It is alleged that defendant failed to deliver fifty-four drums of cod liver oil in accordance with its contract, order denying plaintiff’s motion for summary judgment reversed on the law, with ten dollars costs and disbursements, motion granted, without costs, and matter remitted to the Trial Term for assessment of damages in accordance with rule 113 of the Rules of Civil Practice. The monthly quota irinted provision, upon which defendant relies, provides that it is applicable “ unless otherwise specified.” The typewritten provision with respect to delivery does otherwise specify, it provides that all 175 drums of oil are “ To be taken by buyers as wanted ” during the contract period “ in minimum lots of 20 drums assorted.” In the light of the phrase “ as wanted,” the provision excludes any construction other than that the purchaser was entitled to take all of the drums at any time during the contract period within his discretion, provided that each time he applied for delivery he took a minimum of twenty drums. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.