Citations
- 196 A.D. 114
Full opinion text
Dowling, J.:
The complaint herein contains two causes of action. The first cause of action sets forth that plaintiff and defendant on or about July 10, 1919, entered into a written agreement, a copy of which is annexed to the complaint, whereby the plaintiff sold to the defendant and the defendant bought of the plaintiff 500 barrels of pure linseed oil', fair average quality, to be packed in the usual barrels, suitable for export, containing about fifty gallons each, whereof 250 barrels were to be shipped during August, 1919, and the remaining 250 barrels during September, 1919. The provision as to price was as follows: “ Two dollars and twelve cents ($2.12) per gallon, basis raw; usual differential of 2c per gal. additional for single boiled and 3c per gal. for double boiled oil. Terms F. A. S. New York. Net cash, in exchange for dock receipt. Draw-back papers to be delivered to the sellers when received.” Under the head of “ remarks,” the agreement provided, “ Buyers to furnish marking and shipping instructions in ample time to permit of delivery when desired; and also to furnish G. O. C. permit in order to secure free lighterage to steamer.” It is alleged that at the time of the making of the agreement both plaintiff and defendant well knew and understood that the letters and words “ F. A. S. New York ” meant “ free alongside steamer at the Port of New York.” It is then alleged that in the month of August, 1919, defendant furnished the plaintiff with marking and shipping instructions and G. 0. C. permit in respect to 161 barrels of raw linseed oil, which were duly delivered and paid for; that on or about September 2, 1919, a further agreement was made between the parties whereby the time for delivery of the remaining undelivered 89 barrels of off under the August shipment was postponed to the month of September, 1919, upon all the terms and conditions of the original agreement; and that during the month of September, 1919, defendant furnished the plaintiff with marking and shipping instructions and G. 0. C. permit respecting 20 barrels of oil, which were duly delivered and paid for. It is further alleged:
“ VIII. That defendant has wholly failed and refused to furnish any marking and shipping instructions and any G. O. C. permit except as aforesaid, and has refused to accept from the plaintiff any barrels of raw linseed oil except as aforesaid.
“ IX. That at all times the plaintiff was ready, willing and able to perform all the terms and conditions of said Exhibit A, [being the agreement in question] and has performed all of the conditions of said agreement on its part.”
It is then averred that plaintiff’s damage is in the sum of $6,380.
The second cause of action is based upon a similar agreement in writing, dated July 12, 1919, whereby plaintiff sold to defendant, and defendant bought from plaintiff, 600 barrels of pure linseed oil, fair average quality, packed in the usual barrels suitable for export, containing about fifty gallons each, 300 barrels to be shipped during August, 1919, and remainder during September, 1919, at the price of tw