Hays Merchandise, Inc. v. Dewey

Dale Dewey (defendant) ordered a large shipment of Christmas toys, mostly stuffed animals, from Hays Merchandise, Inc. (Hays) (plaintiff), to be delivered in installments during October and November. About half the promised stuffed animals never arrived despite Dewey's repeated calls, and Hays kept promising to send the rest. By late November, Dewey told Hays he wanted no more deliveries — but then accepted one more shipment anyway, and held onto that shipment and other unopened boxes for months before finally returning them. Hays refused the return and sued to recover the unpaid price for what it had delivered. The trial court found the shortfall was not a material breach and ruled for Hays; Dewey appealed.