Import Traders, Inc. v. Frederick Mfg. Corp.

• Decision Date: 03 January 1983
• Citation: 457 N.Y.S.2d 742,117 Misc.2d 305
• Parties: IMPORT TRADERS, INC., Plaintiff, v. FREDERICK MANUFACTURING CORP., Defendant.
• Court: New York City Court

Page 742

457 N.Y.S.2d 742

117 Misc.2d 305

IMPORT TRADERS, INC., Plaintiff, v. FREDERICK MANUFACTURING CORP., Defendant.

Civil Court of the City of New York,

Kings County, Trial Part 16.

Jan. 3, 1983.

Fried, Greenbaum, Scher & Schwartz, New York City, for plaintiff.

Abraham Spector, Brooklyn, for defendant.

DECISION

THEODORE DIAMOND, Judge.

A trial de novo for breach of a sales contract was held on December 13, 1982. The previous arbitration had been decided in favor of plaintiff for $2,580. plus interest from January 1, 1982. The parties stipulated that if plaintiff prevails after trial, there would be a subsequent traverse on the issue of jurisdiction.

UNCONTROVERTED FACTS

Defendant-buyer ordered the goods in question on August 7, 1981 after earlier conversations with plaintiff-seller. It was clear that buyer wanted a relatively "soft" pad. The agreed purchase price was $2,580. for 500 dozen units (43cents per unit). The goods were delivered on November 19, 1981. They were not paid for. Demand for payment was made in a timely manner. Buyer still has the goods.

FINDINGS OF FACT

Both parties knew there would be a question about exactly how soft the pads would be, when delivered.

Buyer had two samples (# 221 and # 222). His order indicated that he wanted a pad "as soft as possible--like the sample no. 222..."

Both buyer and seller could have waited for an exact sample before ordering, or confirming the order. Neither did so. Buyer's order asked for delivery "as soon as possible".

The # 221 and # 222 samples were not in evidence, but the delivered pads were harder than what buyer really wanted.

Buyer did not inspect the goods in a timely manner, especially since he was aware that there was a question about how "soft" the pads would be at the time he ordered them, and during earlier discussions.

Buyer did not advise seller of his disapproval of merchandise until April, 1982--and only then after seller contacted him at that time about payment.

Buyer desired the imported pads from Taiwan because they would be less expensive than comparable pads manufactured in the United States.

CONCLUSIONS OF LAW

The remedies available to a seller for the breach of a sales contract, by a buyer, are provided in UCC § 2-703. In the present case, the seller has brought an action for the price pursuant to UCC § 2-709. The contract price may be recovered by seller when buyer accepts the goods. UCC § 2-709(1)(a). Acceptance occurred when buyer failed to make an effective rejection (UCC § 2-602(1)) after having had a reasonable opportunity to inspect the goods. UCC § 2-606(1)(b). Official Comment 1 to this section states, "Under this Article 'acceptance' as applied to goods means that the buyer takes particular goods which have been appropriated to the contract as his own, whether or not he is obligated to do so, and whether he does so by words, action or silence when it is time to speak." The goods were delivered to buyer in November, 1981 and it was not until April, 1982, when seller contacted buyer about payment, did buyer first complain about the non-conformity of the rubber pads. Buyer had a reasonable opportunity to inspect and reject the goods. It was his silence for five months that constituted the acceptance.

"The buyer must pay at the contract rate for any goods accepted." UCC § 2-607(1). However, to offset this amount, a buyer who has accepted goods may still have a counterclaim for non-conformity and sue for breach of warranty damages under UCC § 2-714 as well as any incidental and consequential damages under UCC § 2-715. In the case at bar no counterclaims were alleged.

The acceptance of goods precludes their subsequent rejection. UCC § 2-607(2). Once accepted, return of the goods can only be made by way of revocation of acceptance.

                UCC § 2-608.  "Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it....  It is not effective until the buyer notified the seller of it."  UCC § 2-608(2).   Although this assertion was not made by defendant, he failed to act within a reasonable time to revoke acceptance of the goods
                

At trial defendant raised an affirmative defense of breach of warranty. Plaintiff's argument that defendant should be precluded from asserting this defense because of unfair surprise (CPLR § 3018(b)) is not persuasive. It is the nature of this type of business that puts a seller on notice that in any sales transaction, a buyer might claim that the goods are non-conforming. In addition, defendant testified that in April, 1982 he advised seller of his disapproval of the merchandise. Defendant's motion to amend his answer is granted.

Defendant's attempt to establish the existence of an express warranty based on his selecting from two rubber pads sent to him by seller fails. U § 2-313(1)(c). Official Comment 6 draws a distinction between "a 'sample' actually...