9 Barb. 511 | N.Y. Sup. Ct. | 1850
We are referred by the counsel for the defendants to the case, among others, of Downer v. Thompson, (2 Hill, 137,) where an order by the defendant, who resided at Westchester, addressed to the plaintiff at Chitteningo, for 250 barrels of cement, was held by the court not to be complied with by sending 260 barrels. This' case went to the court of errors, and all the members, except two, voted for reversal. (See 6 Hitt, 211.) Senator Hopkins observed, “ that the excess would hardly seem to be so large as to preclude a jury from inferring that it was only added to make sure of having delivered enough, the article being liable to some loss by leakage, and the excess being of no very great value as compared with the anticipated profit upon the whole. If the rule is to be a rigid one, that no more shall be delivered than is contracted for, then the least overplus must vitiate the delivery. But if some latitude is to be allowed for the sake of abundant caution, as I think there should be, it is a question proper for the jury to decide, how much excess there may be without vitiating the delivery.” In 14 Wend. 31, the plaintiff sold some carpeting to one Simmons, for cash, who took a roll home, to cut off what he wanted. About three weeks after, the remnant was returned to the plaintiff, who presented his bill for payment, but in the meantime Sim
In the case before us thirty dollars were paid as the probable value of the hides; the vendor said they were finished, and seemed to suppose that nothing further was to be done. He said the plaintiff could have the leather; and left his man, Bolán, with the plaintiff to select the sides, which were put in a pile by themselves. A part, viz. five sides, were taken away by the plaintiff; and the rest, which the plaintiff supposed needed some cleaning, were left with Bolán for that purpose; and the trifling difference between the estimated and ascertained value of the leather, should there be any for the plaintiff to pay, did not seem to be considered by the parties as rendering the delivery less complete; or if there was any question as to what they intended, the case was fairly left to the jury, whose verdict J. think was right; consequently the judgment of the county court ought to be reversed, and that of the justice affirmed.
H. Gray, J. and Shankland, J. concurred.
Mason, J. dissented.
Judgment of county court reversed.