Rusin v. Frey & Horgan Corp. ( 1939 )

In an action by a seller’s assignee to recover damages for the breach of each of four contracts for the sale of oil by plaintiff’s assignor to the defendant-respondent, order denying plaintiff’s motion for summary judgment and granting defendant’s motion for summary judgment, and judgment entered thereon, severally reversed on the law, with ten dollars costs and disbursements to plaintiff; defendant’s motion denied, with ten dollars costs, and plaintiff’s motion granted, with ten dollars costs. Case remitted to the Special Term for the purpose of assessing damages pursuant to rule 113 of the Rules of Civil Practice. Upon the Undisputed proofs there was a breach of each contract by the defendant purchaser in the failure of the latter to give shipping instructions to the seller. Such instructions, although not expressly required by its terms, were implicitly required by each contract by reason of custom and usage in the trade, proved by plaintiff’s affidavit and not effectually denied by the defendant, which merely claimed, in effect, that such custom and usage could not be invoked in construing the given contract. The sole question for determination relates to the amount of plaintiff’s damages. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.