Nature of the Case
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Facts
Stephen Kunian is the trustee in bankruptcy for P. P entered into a written contract with D to deliver plumbing and heating materials necessary for the construction of an F.H.A. low-income housing project. D agreed to pay $358,381 plus the Connecticut sales tax for the materials. D was to pay, on the 25th day of the month, the price set forth on invoices showing delivery of materials between the 1st and the 15th days of the month, and was to pay, on the 10th day of the succeeding month, the price set forth on invoices showing delivery of materials between the 15th and 30th days of the month. The terms were net 2% if payment was made pursuant to the contract. Deliveries were to be made to the job site when ordered and as ordered by D. P commenced to make delivery to the job site. All of the deliveries made by P were ordered by the D's supervisor and D knew from the very beginning that the deliveries were invoiced, not at the prices listed on the papers attached to the contract, but in accordance with the custom of the trade. From shortly after March 18, 1969, until October 31, 1969, D paid all charges set forth in the invoices except the sum of $7502.75. In spite of this unpaid balance, P continued to make deliveries after October 31, 1969. By November 26, 1969, D's indebtedness for materials delivered and accepted had risen to approximately $38,000. P insisted on payment of the outstanding indebtedness and received only $5000. D promised to make further payments during January 1970 provided that P would continue to deliver materials to the job site, when and as ordered. P continued to delivery and D made no further payment for such materials or in reduction of the indebtedness. D began to purchase plumbing and heating materials from Fairfield Plumbing Supply Company, for which D paid $246,671.49. By letter, D demanded that P deliver the balance of the materials required under the contract, but D did not pay or offer to pay what it already owed at that time or to abide by its prior promise. P requested a guarantee of payment by D depositing sufficient cash in escrow to pay for the delivered materials. D refused, and P ceased making deliveries. The unpaid balance was $51,000. P brought this action, and subsequently, P was adjudicated bankrupt. Kunian was appointed its trustee in bankruptcy and during November 1970, was substituted as the party plaintiff. The court entered judgment in favor of P. Both parties appealed.
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