Kokomo Strawboard Co. v. Inman

CourtNew York Court of Appeals
Writing for the CourtPARKER
Citation31 N.E. 248,134 N.Y. 92
Decision Date31 May 1892
PartiesKOKOMO STRAWBOARD CO. v. INMAN et al.

134 N.Y. 92
31 N.E. 248

KOKOMO STRAWBOARD CO.
v.
INMAN et al.

Court of Appeals of New York,
Second Division.

May 31, 1892.


Appeal from supreme court, general term, second department.

Action by the Kokomo Strawboard Company against Horace Inman and another. From a judgment of the general term entered on an order affirming a judgment in favor of the plaintiff, entered on the report of a referee, defendants appeal. Affirmed.


[134 N.Y. 92]Smith & White, for appellants.

Wm. Ford Upson, for respondent.


PARKER, J.

This action was brought to recover the value of a quantity of strawboard delivered to the defendants, pursuant to the terms of a contract which, by reason of an alleged failure of performance on their part, the plaintiff elected to treat as rescinded. [134 N.Y. 93]The contract was as follows: ‘Kokomo, Ind., Nov. 9, 1887. Horace Inman, Esq., Amsterdam, N. Y.—Dear Sir: We propose to furnish you with 1,200 tons strawboard, at thirty-one dollars per f. o. b. cars here, your ninety days' acceptance from date of invoice. These boards to be shipped during the year 1888. This contract shall be considered binding, barring accidents, and take the place of all previous contracts with the Ohio Strawboard Co. All boards to be of No. 1 quality. Yours, truly, KOKOMO STRAWBOARD CO. M. SIEBERLING, Superintendent. Accepted: HORACE INMAN. P. S. All boards shipped this year to apply on above.’ Subsequently the plaintiff, pursuant to the terms of the contract, and at different dates, delivered to the defendants large quantities of strawboard; the defendants giving, and the plaintiff receiving, defendants' notes, payable in 90 days, in lieu of acceptances. The plaintiff alleges that, after it had delivered a considerable portion of the strawboard called for by the contract, the defendants were guilty of a breach of it, in that they failed to pay some of the notes at maturity, and neglected to give other notes or acceptances for about 88 tons of strawboard. The referee found ‘that the boards shipped by the plaintiff to the defendants were in substantial compliance, as to time and quality, with the terms of the contract.’ With reference to the alleged breach of the contract on the part of the defendants, he found, among other things, that a note maturing July 5, 1888, for $1,054, was protested for nonpayment, and has not since been paid; that a note for $658.75, which became due July 20, 1888, was also protested, and still remains unpaid. [134 N.Y. 94]On the trial the plaintiff surrendered up notes aggregating $3,393.85 of principal, which had been received in lieu of acceptances. From the 5th to the 20th of June, inclusive, the plaintiff delivered to the defendants 87 tons of strawboard, for which the ‘defendants promised to give their notes as they had for other shipments, but have failed and neglected to do so, and have...

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12 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...136 Mass. 307; King v. Faist, 37 N.E. 459; Busch v. Stromberg-Carlson Co., 217 F. 328, S. C. 133 C. C. A. 244; Kokomo Co. v. Inman, 134 N.Y. 92; Frost v. Knight, L. R. 7 Ex. 111; National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P......
  • Harris Lumber Company v. Wheeler Lumber Company
    • United States
    • Supreme Court of Arkansas
    • November 30, 1908
    ...25 N.E. 418; Mead v. Degolyer, 16 Wend. 638; Ladue v. Seymour, 24 Wend. 60, 62; Jones v. Judd, 4 N.Y. 411; Kokomo Strawboard Co. v. Inman, 134 N.Y. 92, 31 N.E. 248; Pattridge v. Gildmeister, 1 Keyes 93; Barnes v. Denslow, 9 N.Y.S. 53. In Rugg v. Moore, 110 Pa. 236, 1 A. 320, where the facts......
  • John A. Gauger & Company v. Sawyer & Austin Lumber Company
    • United States
    • Supreme Court of Arkansas
    • December 14, 1908
    ...30 Me. 258; 5 N.H. 307; 12 R. I. 82. See also 30 N.Y.S. 315; 114 N.Y. 640; 123 N.Y. 382; 16 Wend. (N.Y.), 638; 24 Id. 60-62; 4 N.Y. 411; 134 N.Y. 92. OPINION [115 S.W. 160] [88 Ark. 429] WOOD, J., (after stating the facts.) First. The burden of proof is upon the appellee to show that it is ......
  • Peters Grocery Co v. Collins Bag Co
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 2, 1906
    ...recover for the goods received and kept by the buyer. Curtis v. Gibney, *59 Md. 131; Reybold v. Vorhees, 30 Pa. 116; K. S. Co. v. Inman, 134 N. Y. 92, 31 N. E. 248; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St Rep. 415; and other cases above cited. The plaintiff's counsel contest t......
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9 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...136 Mass. 307; King v. Faist, 37 N.E. 459; Busch v. Stromberg-Carlson Co., 217 F. 328, S. C. 133 C. C. A. 244; Kokomo Co. v. Inman, 134 N.Y. 92; Frost v. Knight, L. R. 7 Ex. 111; National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P......
  • Peters Grocery Co v. Collins Bag Co
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 2, 1906
    ...recover for the goods received and kept by the buyer. Curtis v. Gibney, *59 Md. 131; Reybold v. Vorhees, 30 Pa. 116; K. S. Co. v. Inman, 134 N. Y. 92, 31 N. E. 248; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St Rep. 415; and other cases above cited. The plaintiff's counsel contest t......
  • Closner v. Chapin, (No. 5308.)<SMALL><SUP>†</SUP></SMALL>
    • United States
    • Court of Appeals of Texas
    • June 10, 1914
    ...cited, that were accessible, are no more in point than the Texas cases. Take, for instance, the case of Kokomo Strawboard Co. v. Inman, 134 N. Y. 92, 31 N. E. 248, in which it is held that where the plaintiff contracted to furnish defendant 1,200 tons of strawboard during the year 1888, or ......
  • Ross Meehan Foundry Co. v. Royer Wheel Co.
    • United States
    • Supreme Court of Tennessee
    • November 29, 1904
    ...and to refuse a delivery of any more shells under it to the plaintiff." This view is also supported by Kokomo Strawboard Co. v. Inman, 134 N. Y. 92, 31 N. E. 248; Winchell v. Scott, 114 N. Y. 640, 21 N. E. 1065; G. H. Hess Co. v. Dawson, 149 Ill. 138, 36 N. E. 557; Providence Coal Co. v. Co......
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