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B. M. HEEDE, INC., v. ROBERTS

303 N.Y. 385 (1952)

B. M. Heede, Inc., Respondent, v. Frederic P. Roberts et al., Copartners Doing Business under the Name of Robert & Company, et al., Appellants.

Court of Appeals of the State of New York.

Decided January 17, 1952

Attorney(s) appearing for the Case

Copal Mintz for appellants.

Monroe J. Cahn and Herbert S. Greenberg for respondent.

LOUGHRAN, Ch. J., CONWAY, DYE and FROESSEL, JJ., concur with LEWIS, J.; DESMOND and FULD, JJ., dissent and vote for affirmance on the ground that the trial court's ruling, described in the prevailing opinion of this court, was correct, and that, even if erroneous, it could not have influenced the decision by the jury of this issue of fact, already thoroughly tried out before two juries.

LEWIS, J.

This action, for breach of an implied warranty in a sale by description, arose as a result of the purchase by the plaintiff from the defendants of 80,000 pounds of a chemical known as dibutyl phthalate. In the litigation which followed the plaintiff has thus far successfully maintained that the material delivered under the contract in suit did not meet the commercial standard for dibutyl phthalate whereas...

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