Defendant ordered a hearing aid from plaintiff hearing aid representative. When defendant picked up his hearing aid, he was informed that the model he ordered had been modified and improved and that he would be receiving the newer model. A few days later, defendant returned the hearing aid to plaintiff, complaining that it gave him a headache and that it was not the model number that he ordered. Plaintiff offered to get defendant the original model number that he requested. Neither party mentioned anything about cancelling the contract. Defendant later refused to accept tender of the replacement. Plaintiff filed suit against defendant for the balance due on the contract.
The court held that plaintiff complied with the Uniform Commercial Code, U.C.C. § 2-508, by making a subsequent conforming tender and acting within a reasonable amount of time to notify defendant of his tender of a conforming model.
Judgment was granted to plaintiff because plaintiff properly cured a nonconforming delivery by notifying the defendant of his intention to cure and by making delivery within the contract period.
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