Bartus v. Riccardi
City Court, City of Utica, New York
284 N.Y.S.2d 222 (1967)
Riccardi (defendant) ordered a Model A-660 hearing aid from Bartus (plaintiff), a licensed dealer, and paid an $80 deposit, but Bartus delivered a Model A-665, marketed as a newer, improved version. Riccardi wore the A-665 briefly, found it caused headaches, and returned it about a week later, objecting that it was not the model he had ordered. Bartus offered to obtain the original A-660, and Riccardi neither accepted nor rejected the offer; neither party mentioned canceling the contract. Bartus's supplier, Acousticon, promptly wrote to Riccardi offering either the A-660 or a repaired A-665, but Riccardi declined both, and Bartus sued him for the balance due under the contract.
Whether a seller who delivers a nonconforming item out of an honest, reasonable belief that the buyer will accept it may cure a subsequent rejection by promptly offering the item the buyer originally ordered.