Bartus v. Riccardi

City Court of Utica, Oneida County, New York, 1967.

55 Misc.2d 3, 284 N.Y.S.2d 222.

Dawson, pp. 820-822


Facts: The defendant came to the plaintiff to buy a hearing aid.  He ordered a Model A-660 but received a Model A-665 instead.  After trying it for about half a day, the defendant rejected and returned it.  The plaintiff got in touch with the manufacturer, who offered to get the defendant a Model A-660.  The defendant decided that he didn’t want either model from the plaintiff.  The plaintiff sued on the balance due on the contract.  The defendant argued that he had the right to reject the Model A-665 because it was an improper delivery of goods.


Issue: Can the plaintiff recover even though he initially delivered a hearing aid not in exact conformity with the contract given that he later tendered a model that did meet the terms of the contract?


Rule: Under UCC § 2-508, the seller of goods can take a reasonable amount of time to make a conforming delivery in substitute for the non-conforming goods.


Analysis: The court says that the plaintiff had reasonable grounds to believe that the Model A-665 would be acceptable to the defendant.  Therefore, the provisions in § 2-508 kick in and allow the plaintiff reasonable extra time to come up with a Model A-660 in conformance with the contract.  Essentially, the court is swayed by the combination of § 2-508 and the plaintiff’s reasonableness.


Conclusion: Judgment is granted to the plaintiff.


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