24 N.Y.S. 364 | The Superior Court of the City of New York and Buffalo | 1893
Lead Opinion
Upon the record it stands admitted that the mantels delivered were not such as were ordered. It is also admitted that objection was immediately taken to them, before they were placed in position. At the solicitation of the vendors, they were permitted by defendant’s wife—defendant not being present— to place them in the house, for the sole purpose of enabling defendant to see them in position, in the hope that he might be induced to accept them. When defendant saw the mantels thus placed, he immediately rejected them, and notified the vendors to take them away, and restore the walls. This was not done, and thereafter the vendors presented their bill, which included the mantels. Defendant repudiated the bill to that extent, and paid the balance, which was accepted. Thereafter, negotiations were had to purchase the mantels at a less price. These proved abortive. The vendors now made a general assignment for the benefit of creditors, and their assignee attempted to sell the mantels to defendant, but failure attended his efforts. Now arose the only contested question in the case. When the assignee went to defendant to see about the bill, no agreement was reached, and the assignee said he would take the mantels away. Defendant told him to do so, and fix up the walls. Plaintiff’s proof tended to establish that thereafter Bensler, as agent of the assignee, went to defendant’s house, and demanded the mantels of defendant’s wife, whom he found in charge; that she refused to allow them to be removed. Thereupon Bensler went to defendant, and was by him again directed to get the mantels, and, visiting the house again for that purpose, was again refused delivery of them by the wife. At a prior time he had visited the house for the purpose of removing the mantels, and found it locked. This testimony was corroborated by Bensler’s son, who accompanied him, and constituted plaintiff’s evidence upon this branch of the case. Defendant’s wife testified that Bensler never visited the house but once, to her knowledge, and then said he came to see about the mantels, but made no demand for them; that at the time she was sick, and directed him to see her husband; and that she never saw him thereafter. Defendant testified that he did not see Bensler but once, and that was in the presence of the assignee, when he told him to take the mantels away, and fix up the walls.
Upon this testimony the court below was authorized to find that there was never an acceptance of the mantels, and that no demand for their delivery had ever been made and refused. The witnesses were all interested, as Bensler was one of the firm of vendors of the property, interested in the assigned estate, and husband of the plaintiff. The court had the benefit of their presence, and observed their manner, and we see nothing which calls upon us to disturb its conclusion thereon. This finding left the mantels the property of the assignee of vendors, and no action could be maintained for their purchase price, or for conversion by him; and plaintiff, as assignee of this account, occupies no better position. This result
TITUS, O. J., concurs.
Dissenting Opinion
(dissenting.) This is an appeal by the plaintiff from a judgment of the municipal court of Buffalo, of no cause of action, rendered on March 8, 1892, in favor of the defendant, and against the plaintiff. The plaintiff claims that in May, 1890, the plaintiff’s husband and one Hughson, as copartners, sold and delivered to the defendant a quantity of furniture, including two mantel tops, at the agreed price of $239, payable upon the delivery of the goods, and that the goods were worth the sum agreed upon. The complaint admits that $199 thereof was paid, and seeks to' recover the alleged balance of $40, with interest from May 9, 1890. The complaint also alleges that the claim sought to be enforced was assigned by the plaintiff’s husband and Ms partner to one John Streicher, and that Streicher reassigned it- to the plaintiff, before suit was brought. The answer denies the" value of the property purchased by the defendant from the plaintiff’s husband and his partner, and their alleged assignments of the claim, and alleges payment in full for all he purchased. The substantial issue in the case is whether or not the two mantel tops were purchased by the defendant, or whether he became liable to the firm of Bensler & Hughson for their value. If tMs issue is to be decided in favor of the plaintiff, the judgment appealed from must be reversed. The transaction between the defendant and the firm of Bensler & Hughson was, in the first instance, conducted by Hughson, on the-part of the firm, with the defendant, personally. Hughson testifies that he made the sale,"and that the mantel tops were charged by him to the defendant at $40, and that the defendant’s wife assisted him in selecting ■ the articles, and that the mantel tops were to be made from a plate exhibited by him to them at the time of the selection. He says he delivered the articles, including the mantel tops, at the defendant’s house, to his wife, who expressed her disapproval of them. In fact, they were not according to contract. But she consented that they be
I think the judgment appealed from should be reversed.