Opinion
November 16, 1949.
Appeal from Court of Claims.
Present — Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ. [See post, p. 940.]
On September 25, 1946, claimant entered into an agreement with the State by the terms of which he agreed to deliver to the State 180,650 pounds of fresh and salt water fish of a particular grade for the period between October 1, 1946, and March 31, 1947, at a price of thirty-one cents per pound. Between October 1st and October 18th various State institutions placed orders for fish totaling 10,735 pounds. All these orders required claimant to deliver fillets of cod or fillets of haddock. During this period the court below found that claimant filled approximately 25% of the orders with hake fillets in violation of his contract and that as a result thereof the State cancelled the contract on October 18, 1946. The proof sustains the finding of the court below. Prior to the trial of the action the parties entered into a stipulation regarding damages. This stipulation provides that if claimant was entitled to recover he should receive an award of $13,858.56 and that if the State was justified in canceling the contract it was entitled to recover $1,836.50. The court below gave the State a judgment for that amount with interest. The evidence sustains that finding. Judgment unanimously affirmed, with costs.