nonconforming tender

The plaintiff, a franchised representative of Acousticon, a manufacturer of hearing aids, entered into a contract with the defendant on January 15, 1966. The defendant signed a contract to purchase a Model A-660 Acousticon hearing aid from the plaintiff after being tested at a hearing aid clinic and informed that this model was best suited for his condition. An ear mold was fitted to the defendant and the plaintiff ordered Model A-660 from Acousticon. On February 2, 1966, the defendant went to the plaintiff’s office in response to a call and was informed that Model A-660 had been modified and improved and was now called Model A-665, which had been delivered for his use. The hearing aid was fitted to the defendant, who complained about the noise but was assured by the plaintiff that he would get used to it. The defendant denies that he understood this was a different model number. The defendant used the hearing aid for a total of 15 hours over the next few days. He returned to the hearing clinic, where he was informed that the hearing aid was not the model he had been advised to buy. On February 8, 1966, he returned to the plaintiff’s office complaining that the hearing aid gave him a headache and was not the model he had ordered. He returned the hearing aid and received a receipt, at which time the plaintiff offered to get Model A-660 for the defendant, though the defendant neither consented to nor refused the offer and no mention was made by either party about canceling the contract. The plaintiff immediately informed Acousticon of the defendant’s complaint. By letter dated February 14, 1966, Acousticon wrote directly to the defendant explaining that Model A-665 was an improved version of Model A-660 and offering to replace the delivered model or obtain Model A-660. After receiving this letter the defendant decided that he did not want any hearing aid from the plaintiff and refused to accept the tender of a replacement. The plaintiff is suing for the balance due on the contract. Although the defendant made an $80 down payment, the court did not consider the defendant’s counterclaim for repayment of the down payment. The counterclaim was raised only when the case was ready to go to trial and was not shown in the pleadings.