8 N.Y.S. 301 | N.Y. Sup. Ct. | 1889
This was an executory contract for the sale and delivery of the gloves. The defendants were not obliged to keep the gloves if they were not of the kind and quality ordered; that is, No. 1, first quality, of the styles specified. When defendants received the gloves, it was their duty to examine them as promptly as they reasonably could,—some of the cases say immediately,—and if they found the gloves were not the gloves ordered, but varied from the order in any respect unsatisfactory to themselves, they were put to their election either to accept or reject them. Failing to return them, or to give the plaintiffs notice to take them back, they are presumed to have accepted them. Reed v. Randall, 29 N. Y. 358; Manufacturing Co. v. Allen, 53 N. Y. 515; McCormick v. Sarson, 45 N. Y. 265; Beck v. Sheldon, 48 N. Y. 365; Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. Rep. 335. The evidence shows that the defendants did examine the gloves, and on October 6, 1887, returned a small parcel of them as defective. They had examined every pair of them. They knew how they looked and felt, and had fitted enough of them to their customers’ hands to know to what extent to expect breakage in that process. The plaintiffs accepted the returned parcel without objection. The defendants’ letter of October 6th to the plaintiffs states as the result of their examination, which the letter speaks of as a “proper examination,” that “ we are not at all satisfied with them.” It appears from that letter that they elected to return a part, and invited concessions from the plaintiffs as to the rest. They say: “We would much rathér return them to you than to place them on sále, as they do not open up as we think they should. We should prefer not to accept these even at ten per cent, allowance. * * * Awaiting your reply, we remain,” etc. Returning part, and retaining the rest, after examination, was a loss of the right of further return. The matter thenceforth rested upon such concessions as the plaintiffs might make. The plaintiffs made concessions in their letter of October 22d. These were that the defendants might return such gloves as did not suit them, and plaintiffs would replace them with “A No. 1 goods.” The defendants thereupon returned all the gloves unsold, and plaintiffs sent them the “A No. 1 goods,” and defendants rejected them without examination. The defendants have no remedy upon the original contract, and none upon the subsequent' one. The replaced gloves became theirs, and their refusal to accept them was their own fault. There is no disputed question of fact, and we think it was the duty of the court to declare the law, and direct the verdict for the plaintiffs. Judgment affirmed,'with costs. All concur.