Tenavision, Inc. v. Neuman
| Decision Date | 11 July 1978 |
| Citation | 408 N.Y.S.2d 36,45 N.Y.2d 145,379 N.E.2d 1166 |
| Parties | , 379 N.E.2d 1166, 24 UCC Rep.Serv. 337 TENAVISION, INC., Appellant, v. Carl H. NEUMAN, Individually and doing business as James Square Nursing Home et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
David J. Mandel and Joseph H. Muraskin, New York City, for appellant.
Abraham Hect, Forest Hills, and Morris Ehrlich, P. C., New York City, for respondents.
By three agreements dated May 13, 1970, plaintiff agreed to lease 140 black and white and four color television sets to James Square Nursing Home, which was referred to in the contracts as a "trade name" for defendant Carl N. Neuman. Although the demised term was for 60 months, the lessee was given an option to purchase the equipment at the expiration of this period for one dollar per set. The agreements were never carried out and this action ensued with both sides claiming breach by the other and seeking damages.
In its complaint, plaintiff alleged four causes of action relating to the agreement. Special Term granted summary judgment to plaintiff on the first, wherein plaintiff sought the reasonable value of its services and for materials furnished to install a remote control wiring system for use of the television sets, and severed it from the other three causes of action. The second is for loss of profits under the agreements and the third and fourth are, respectively, for counsel fees and for recovery on a guarantee of the contracts by defendant Continued Care Facilities, Inc. Defendant Neuman counterclaimed for damages, alleging that plaintiff had breached the contracts.
At the trial without a jury, an officer and director of plaintiff testified that he made numerous telephone calls concerning delivery to the nursing home, which is located in Syracuse, New York, and that he was advised that the sets were not needed. Although the equipment was not shipped to the nursing home, plaintiff's officer then wrote to an officer of defendant Continued Care Facilities, Inc., regarding the refusal to accept delivery. In the letter, an offer was made by plaintiff to cancel two of the contracts covering approximately 95 televisions, if the agreement calling for delivery of 35 sets was accepted. This offer was not accepted.
A part of the dispute centered around a provision in the agreements which stated: "The Lessor (plaintiff) agrees not to file or cause to be filed a UCC-1 form covering the agreement." At trial, defendant Neuman testified that, despite this assurance in the contracts, an officer of plaintiff told him that plaintiff could not deliver the television sets at all unless Neuman executed a number of UCC-1 forms which would then be filed as part of plaintiff's financing of the arrangement. Plaintiff conceded that there had been a request for the documents for filing, but countered this assertion by attempting to show that although it wanted to finance the transaction, it would have had the ability to ship the goods even though its request was denied. Defendant further asserted that plaintiff failed to make a tender of any type in accordance with the contract, or as required under the Uniform Commercial Code. *
Based on the testimony and other evidence, the trial court found that plaintiff had tendered delivery, allowed recovery with respect to 35 of the sets, and dismissed the counterclaim. The Appellate Division unanimously reversed, on the law, concluding that plaintiff had failed to prove at trial that it was able to supply the goods without the secondary financing evidenced by the filing of UCC-1 forms. The court also charged plaintiff with breach of contract and remanded for a hearing to determine the extent of damages on defendant Neuman's counterclaim.
There should be a reversal. Although it was conceded by plaintiff at trial that it requested UCC-1 forms from defendants, the mere asking for these statements would not constitute a repudiation of the agreements. This request was not complied with and thereafter plaintiff sought to make arrangements to deliver the televisions, but was advised that the ordered sets were no longer needed. An officer of plaintiff testified regarding his numerous offers to deliver the equipment, and it is notable that there was no showing that these offers were conditioned on the signing or filing of any of the forms. Significantly, this testimony was expressly credited by the trial court. Hence, in these circumstances, the Appellate Division erred in its emphasis on whether plaintiff could prove that it was able to supply the goods. Regardless of how plaintiff desired to finance the transaction, it unequivocally sought to deliver the sets. Therefore, defendants were not at liberty to refuse the goods simply because requests to prepare these forms had been made and denied.
It is also held that under these circumstances plaintiff was not obligated to make a tender. While ordinarily a tender of the goods is required ...
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