The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 50
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272 FEDERAL REPORTER
year, the Macdonald & Kiley Company sold and delivered to the defendant
shoes of the reasonable value and agreed price of $38,143.61; that no part
thereof has been paid except the sum of $29,555 24, and that there remains due
and owing a balance of $8,588.37. It is also alleged that on October 10, 1916,
the Macdonald & Kiley Company was adjudged bankrupt, and that on Novem-
ber 6, 1916, the complainant was appointed trustee in bankruptcy of the said
bankrupt, and that he duly qualified and entered upon the performance of his
duties in which he is still engaged. He demands judgment against the de-
fendant in the sum of $8,588.37.
'ne answer sets up, by way of set-off and counterclaim, that the Macdonald
& Kiley Company agreed to sell to defendant, and defendant agreed to buy
from that company, certain shoes, to wit, 16,660 pairs of shoes at $3.50 per
pair, 8020 pairs of shoes at $4 per pair, and 3,000 pairs of shoes at $4.50 per
pair; that the vendor promised to deliver all of the said shoes to defendant
on or prior to February 1, 1917; that on or prior to October 30, 1916, the
company, in part performance of its agreement, duly delivered to defendant
10,795 pairs of shoes at the agreed price of $3 50 each, 2,441 pairs at the
agreed price of $4 each, 300 pairs of shoes at the agreed price of $4.30 eacn,
and no more. The answer also states that the defendant was at all times
ready and willing to accept and receive the residue of the said shoes, which
the company, however, neglected and refused to sell and deliver. It alleges
that by reason of the premises the defendant has been damaged in the sum of
$10,000, which amount it seeks to set off or counterclaim against the sum
which may be found unpaid in respect of shoes heretofore delivered by the
company to the defendant.
The plaintiff thereupon filed a reply in which it admitted that prior to
October 30, 1915, the company had delivered to the defendant 1,566 pairs of
shoes at the agreed price of $3.35 per pair, 7,927 pairs at the agreed price oat
S3 50 per pair, 2 pairs of shoes at the agreed price of $3.75 per pair, 3,831
pairs of shoes at the agreed price of $4 per pair, 1 pair of shoes at the agreed
price of $4 25, 326 pairs of shoes at the agreed price of $4.50, 3 pairs of shoes
at the agreed price of $4.75 per pair, 16 pairs of shoes at the agreed price of
$5 per pair, and 1 pair of shoes at the agreed price of $5 25 per pair.
At the close of the case both sides moved for the direction of a verdict
The court after having taken the case under advisement directed a verdict
for plaintiff for $5,803 27 Judgment was entered in favor of the plaintiff in
1 hat amount on August 1, 1919. Thereafter the defendant moved to vacate
the judgment and for a new trial. The court took that motion under advise-
nment and filed an opinion that the defendant's damages exceeded in amount
the total of the plaintiff's claim, and that judgment should be vacated and
directed a verdict for defendant An order was entered on December 10,
1919, vacating the previous judgment, and on December 13, 1919, a judgment
was entered in favor of defendant upon its counterclaim against the plaintiff
to the amount of the plaintiff's demand. This judgment was vacated on May
11, 1920, and a new judgment in tavor of defendant was entered on the same
Cadwalader, Wickersham & Taft, of New York City (Walbridge S.
Taft, of New York City, of counsel), for plaintiff in error.
Hastings & Gleason, of New York City (A. H. Gleason, of New
York C ity, of counsel), for defendant in error
Before WARD, ROGERS, and MANTON, Circuit Judges.
ROGERS, Circuit Judge (after stating the facts as above). This
is an action to recover the value of shoes sold and delivered, amounting
to the sum of $8,588.37. The defendant admits such sale. The differ-
ence between the parties arises as to the defendant's counterclaim. The
theory of the defendant is that the Macdonald & Kiley Company con-
tracted to deliver an additional number of shoes and then failed to
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/72/: accessed June 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.