E. I. du Pont de Nemours & Co. v. J. I. Hass Co. , 278 A.D. 803 ( 1951 )


Menu:
  • Per Curiam.

    The evidence supports all the basic findings of the learned trial court, but we think there was a mathematical error in computation of disputed items. In allowing plaintiff full recovery on its complaint in the sum of $10,676.40, the court directed payment to plaintiff in full for the additional disputed gallonage not billed by plaintiff and not paid for by defendant. Thereafter, however, in calculating defendant’s counterclaim on the aluminum paint, the court held defendant should have paid on the basis of 14,688 gallons which included again the overage in gallons for which plaintiff had already been paid on the allowance of the sums demanded in the complaint. Defendant had overpaid on only 12,240 gallons billed whieli at $2.60 a gallon for that number of gallons totals payment of $31,824; that sum subtracted from the amount defendant paid of $35,082 results in an overpayment on the aluminum paint of $3,258. Accordingly, on its counterclaim, in addition to undisputed items on red lead and blue aluminum totalling $8,264.70, defendant should be allowed recovery of $3,258 as overpayment on the aluminum paint, making a grand total on the counterclaim of $11,522.70. Offsetting the total amount due defendant on its counterclaim, viz., $11,522.70 against the amount allowed plaintiff on its complaint, viz., $10,676.40, results in an affirmative judgment in favor of defendant of $846.30.

    The judgment appealed from should be modified accordingly so as to direct judgment in favor of defendant-appellant J. I. Hass Co. Inc., against plaintiff in the sum of $846.30 with interest and, as so modified, affirmed, with costs to defendant-appellant. Settle order.

    Peek, P.J., Dore, Cohn, Van Voorhis and MeCum, JJ., concur.

    Judgment unanimously modified so as to direct judgment in favor of the defendant-appellant J. I. Hass Co., Inc., against plaintiff in the sum of $846.30 with interest and, as so modified, affirmed, with costs to the defendant-appellant. Settle order on notice.

Document Info

Citation Numbers: 278 A.D. 803

Filed Date: 5/8/1951

Precedential Status: Precedential

Modified Date: 1/12/2023