Friday, December 27, 2013

Jungmann & Co., Inc. v. Atterbury Brothers, Inc. case brief

Jungmann & Co., Inc. v. Atterbury Brothers, Inc. case brief summary
163 N.E. 123 (1928)

Plaintiff seller filed an action against defendant buyer on a contract for the sale of casein. The buyer appealed from a judgment of the Appellate Division of the Supreme Court in the first judicial department (New York), which affirmed a judgment in favor of the seller entered upon a verdict.

The seller entered into a written contract with the buyer for the sale of 30 tons of casein. The contract contained the clause, "Shipment: May-June from Europe; advice of shipment to be made by cable immediately when goods are dispatched." Two different shipments were made in June by the seller, each shipment containing fifteen tons of casein. Upon tender thereof, the buyer refused both shipments. The seller commenced an action for breach of contract. The trial judge rendered a judgment in favor of the seller and the lower court affirmed on appeal.


  • On appeal, the court reversed the judgment and dismissed the complaint. 
  • Until the first 15 tons of casein arrived, no notice any kind had been given to the buyer that the goods had been shipped. 
  • Notice that the remainder of the goods was shipped was given by letter from the seller, not by cable. 
  • The seller could not recover upon its contract without proof that it performed all conditions precedent required of it. 
  • Because the seller was obligated under its contract to see that the buyer obtained advice of shipment by cable and failed to do so, it was barred from recovery.
The court reversed the judgment of the lower court and dismissed the seller's complaint against the buyer on a contract for the sale of casein.

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