## Facts

- A buyer contracted to purchase a specific model Acousticon hearing aid (Model A-660) from the seller and made an $80 down payment.
- Before delivery, the seller stated the A-660 had been modified and replaced by a newer model (A-665) and delivered the A-665 instead.
- The buyer used the A-665 for about a week (roughly 15 hours), experienced headaches and discomfort, and learned from a hearing clinic that it was not the model recommended.
- The buyer returned the device, stating it caused headaches and was not the ordered model.
- The seller promptly offered to obtain and deliver the originally ordered A-660 and notified the manufacturer.
- The manufacturer then offered either a replacement A-665 or the A-660.
- The buyer refused both options and decided not to accept any hearing aid from the seller.
- The seller sued for the unpaid balance of the contract price; the buyer asserted a counterclaim for return of the down payment, which the court treated as untimely.

## Issues

1. Whether a seller who delivered nonconforming goods may still recover the contract price after seasonably offering a conforming tender under U.C.C. § 2-508(2).
2. Whether delivering a newer “modified and improved” model gave the seller reasonable grounds to believe the buyer would accept the substituted tender.
3. Whether the seller provided seasonable notice and an adequate opportunity to cure after the buyer’s rejection.

## Decision

- The court entered judgment for the seller for the balance of the contract price.
- The initial delivery (A-665) was nonconforming because the contract specified the A-660.
- The seller had reasonable grounds to believe the buyer would accept the A-665 because it was represented as a newer, improved version of the ordered model.
- The seller seasonably notified the buyer of an intention to cure and offered a conforming substitute (A-660) after the buyer’s complaint.
- The buyer’s refusal to accept the conforming cure did not relieve him of liability under the contract.
- The buyer’s counterclaim for return of the down payment was not considered on the merits because it was untimely.

## Legal Principles

- Under U.C.C. § 2-508(2), after rejection the seller may substitute a conforming tender if (1) the seller had reasonable grounds to believe the nonconforming tender would be acceptable and (2) the seller seasonably notifies the buyer of the intention to cure.
- A good-faith substitution of a newer “improved” model can supply reasonable grounds for believing the buyer would accept the tender.
- The seller’s prompt offer to provide the contract-specified goods can preserve the contract despite the buyer’s initial rightful rejection under the perfect-tender rule.
- In assessing cure, courts may consider whether permitting cure prejudices the buyer, including whether the buyer has materially changed position.

## Conclusion

The court enforced the sales contract because the seller, after delivering a nonconforming model, promptly and seasonably offered a conforming replacement and had reasonable grounds to think the substituted “improved” model would be acceptable under U.C.C. § 2-508(2).


Bartus v. Riccardi, 55 Misc. 2d 3, 284 N.Y.S.2d 222 (N.Y. City Ct. 1967)