
    William Whitman Company, Inc., Respondent, v. Herbert A. Witcombe et al., Appellants.
    
      Contract — sale — rescission — action to recover for alleged breach of contract to purchase goods — defense of failure to deliver.
    
    
      Whitman Co., Inc., v. Witcombe, 215 App. Div. 766, affirmed, i
    (Argued January 21, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover for an alleged breach of contract. It appeared that plaintiff sold and defendant purchased merchandise for future delivery. After part of the goods were delivered and paid for there was a revision of the contract with respect to payment of the balance. Thereafter defendants attempted to rescind on the ground that though plaintiff had sent an invoice thereof it had failed to deliver the goods.
    
      George Byall and W. J. Magee for appellants.
    
      Allan B. Campbell and Charles E. Scribner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ.  