
    Henderson Tire and Rubber Company, Inc., Appellant, v. P. K. Wilson & Son, Inc., et al., Respondents.
    
      Contract — action to recover on contract for manufacture and sale — defense of failure to deliver in accordance with contract and of defect in quality.
    
    
      Henderson Tire & Rubber Co., Inc., v. Wilson & Son, Inc., 208 App. Div. 760, affirmed.
    (Argued April 15, 1924;
    decided May 20, 1924.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 12, 1924, unanimously affirming a judgment in favor of defendants entered upon a verdict. The complaint set forth two alleged causes of action to recover the total sum of $229,550.54. The first cause of action was for the sum of $37,510.13, representing the contract price of automobile tires manufactured by the plaintiff, which tires, it is alleged, were duly tendered to the defendant partnership who failed and refused to accept the same. The second cause of action was to recover the sum of $192,040.41, damages alleged to have been sustained by the plaintiff by reason of the alleged anticipatory breach of the contract between the defendants and the plaintiff for the manufacture of automobile tires, and purported to represent the difference between the cost of manufacture of said tires and the contract price thereof. The answers deny the essential allegations of the complaint and set up by way of defense that the tires shipped under the contract were not delivered in accordance with the terms thereof, and that the tires delivered under the contract were defective in quality, material and workmanship.
    
      
      Simon Fleischmann, Martin Clark and George C. Riley for appellant.
    
      David L. Podell, Jacob Scholer and Harold L. Fierman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  