2 Hall 345 | The Superior Court of New York City | 1829
It is no doubt the general rule, that when goods are sold upon a special agreement, which continues executory, no general indebitatus assumpsit will lie. In the present case, however, it is clear from the evidence, that the sale was, in truth, considered a cash sale, unless the buyer should give’ an endorsed note, at six months. The credit which he was to have, was on con dition that he gave the security, and the delivery of the goods was upon the same condition.
Under these circumstances, there can be no question, but that the plaintiffs had a right to reclaim the goods, if they remained in the hands of the defendants, upon their refusal to comply with the conditions of the sale; or to treat the sale as an absolute one, without credit, and to bring their action for the price.
In the cases cited by the defendant’s counsel, the sale and delivery of the goods were absolute, but to be paid for in a peculiar manner, at a subsequent period. In this case, the "sale and delivery were strictly conditional; If the defendants refused to perform the condition, and still kept the goods, they were bound to pay for them immediately.
Motion to set aside the non-suit, and for a new trial denied.
[B. Clarke, Att’y for the plffs. J. Wallis, Att’y for the deft.]
