Robert Gair Co. v. Armstrong , 107 N.Y.S. 5 ( 1907 )

PER CURIAM.

The action is for breach of contract. On April 28, 1903, defendant wrote to plaintiff, ordering a certain number of frames to be delivered within six weeks. On April 29th plaintiff wrote in reply, guaranteeing delivery of the frames within six weeks. These frames were so delivered, and as to them no dispute arises. On May 8th defendant went to plaintiff’s factory and ordered another lot of frames, writing on the foot of defendant’s letter of April 28th these words:

“Note. Increase the above order to 5 M. of each, and to be made paneled with pictures supplied.”

These goods were not delivered in six weeks, and defendant refused to pay for them, or accept them, and canceled the contract, claiming that the failure to deliver them in six weeks prevented him from filling a contract with the American Tobacco Company, for which he counterclaims damages. The court found for plaintiff. Defendant appeals.

It seems to us that the second order must be construed as being made on the same terms as the first, and that the goods were to be delivered within six weeks, and that plaintiff accepted the order with this understanding.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.