Newark Cheese Co. v. Masonville Creamery Co.

Judgment unanimously affirmed, without costs of this appeal to either party. This court makes the following additional finding and modifications of findings of the trial court: In the last week of October, 1919, when the $2,000 note was given,, it was agreed between the plaintiff and the defendant that the retaining of the note should be without waiving any rights on the part of the defendant under the contract, and that no more milk would be delivered by the defendant to the plaintiff until said note was paid; that said note should be paid within two or three days, and it was not so paid, and was not paid prior to November 1, 1919; that said note was not accepted in payment of the debt then due, but as collateral security for the said indebtedness. The fifth finding of fact of the trial court is modified by adding the words “ and for payments due prior thereto.” The sixth finding of fact of the trial court is modified by adding the words “ and for milk delivered prior to October, 1919.” The *913seventh finding of fact of the trial court is modified by striking out the words “ for Which plaintiff’s note had been given and endorsed by its treasurer, individually.” The eleventh finding of fact of the trial court is modified to read as follows: “ Eleventh. That it was not intended by defendant to waive prompt payment pursuant to the terms of the contract as to the milk thereafter delivered, which fact was made known to the plaintiff by the defendant’s representative during the last week of October, 1919, at the interview between the plaintiff’s treasurer and the defendant’s representative in New York city.”