191 A.D. 557 | N.Y. App. Div. | 1920
This plaintiff sold to this defendant some goods which were to be made up in boys’ suits. It was the custom when goods were thus sold, for the purchaser to send them to a sponger, who sponged them and inspected them, and if there were any defects in the goods they warned the purchaser at that time. The defendant’s evidence is to the effect that upon the recommendation of the plaintiff he picked out the Peerless Cloth Sponging Works and that the plaintiff stated to the defendant at the time that he knew them and that he would guarantee their work and that they were all right. No defects were reported by the Peerless Cloth Sponging Works and the goods were laid aside about sixty days until the defendant had occasion to start manufacturing theboys’ suits, which were tobe delivered about the middle of December. It was then found that the goods were loosely woven and tender and had holes in them and were not at all adapted to that work. The plaintiff has sued for the purchase price and the defendant has counterclaimed for damages by reason of the defect in quality. There is no challenge made as to the plaintiff’s action. The only question in the case rests upon the challenge to the defend
This case was first tried in the City Court and judgment was rendered in favor of the plaintiff for the full amount on the ground as held by the court that the notice of the defect was not given to the plaintiff within a reasonable time. This was reversed by the Appellate Term, the Appellate Term holding that under the peculiar circumstances of this case — the guaranty by the plaintiff of the reliability of these spongers — it was a question of fact for the jury to say whether under such circumstances notice was not given within a reasonable time. (107 Misc. Rep. 633.) The case came back for a new trial.
At the close of the trial the plaintiff’s counsel asked the court to charge that “ if they [the jury] find from the evidence in the case that the plaintiff made no statement whatever as to his standing back of the sponger, that he did not mention the name of the Peerless, did not recommend them, and in fact had nothing to do with the selection of the sponger, but that the defendant bought these goods, had them examined by his own sponger and placed the goods on the shelves and made no effort whatever to examine them, and left them there for about two months, that under such circumstances if the jury finds those to be the facts, that as a matter of law the defendant forfeited his right to set up any counterclaim in regard to the quality of tiñe merchandise, because under such.circumstances» he would, as a matter of law, have waited an unreasonable length of time.” This request was properly made, because the plaintiff had denied explicitly the evidence of the defendant to the effect that he recommended ‘this Peerless Company as a sponger and that he guaranteed the work of this company. If, therefore, the jury believed that these representations were not made, then it would seem clear, as matter of law, that the failure to notify the plaintiff of the defects therein for fifty-six days after delivery constituted an unreasonable delay in giving notice and would defeat the right of the defendant to recover upon his counterclaim. The court had not charged upon the specific matter which was the subject of the plaintiff’s request and under the law as stated the plaintiff was clearly entitled to have the request charged.
Clarke, P. J., Dowling, Page and Greenbaum, JJ., concur.
Exceptions sustained and new trial ordered, with costs to plaintiff to abide event. Settle order on notice.
