## Facts

- A seller contracted to sell a buyer 30 tons of casein, to be delivered by sea in two shipments of 15 tons each.
- The contract required the seller to give the buyer immediate notice of shipment by cable.
- The seller shipped the first 15-ton lot but did not send the required immediate cable notice.
- The buyer refused to accept the first shipment, citing noncompliance with the cable-notice requirement.
- The seller later sent a letter (not a cable) indicating an intent to ship the goods on a specified sailing date; the letter was sent before shipment rather than immediately upon shipment.
- After the goods arrived, the buyer refused to accept delivery and refused to pay.
- The seller sued for the contract price or damages; the litigation proceeded through the New York courts to the New York Court of Appeals.

## Issues

1. Whether a contract term requiring immediate cable notice upon shipment was a condition precedent to the buyer’s duty to accept and pay.
2. Whether the seller’s failure to provide the specified notice method and timing was a material breach permitting the buyer to reject the goods and refuse payment.

## Decision

- The New York Court of Appeals ruled for the buyer.
- The court treated the immediate cable notice requirement as an express condition of the buyer’s obligation to accept and pay.
- Because the seller did not send a cable immediately upon shipment and relied instead on a letter (and at the wrong time), the seller failed to satisfy the condition.
- The buyer was entitled to reject the shipments and was not liable for the price.

## Legal Principles

- An express contractual requirement prescribing a specific mode and timing of notice in a mercantile sale may operate as a condition precedent to the other party’s duty to perform.
- Failure to comply with an express condition permits the nonbreaching party to refuse performance, including rejecting goods and withholding payment.
- In commercial sales, courts may require strict compliance with clearly stated conditions, especially where the parties’ chosen method (e.g., cable) signals the importance of rapid, reliable communication.

## Conclusion

The court enforced the shipment-notice clause as an express condition precedent and held that the seller’s failure to give immediate cable notice defeated its claim for the price, entitling the buyer to reject the goods and refuse payment.


Jungmann & Co. v. Atterbury Bros., Inc., 163 N.E. 123 (N.Y. 1928)