109 N.E. 101 | NY | 1915
The action is one to recover damages for conversion. In March, 1903, the Dodge Dry Goods Company gave an order to the defendant for show cases and counters. They were installed about June 5, 1903, in the buyer's place of business. On June 16 there came from the buyer a letter of complaint. There was complaint because there had been delay in the delivery of the fixtures. For this delay it was stated that a claim would be made for a reduction of the price. There was complaint that one case did not comply with the specifications, and *187 the defendant was informed that "this case" was not accepted "as meeting the requirements of the contract." The letter closed with the suggestion that a compromise would be considered, but added that "pending such a result, we refuse to accept your case and work." A second letter, dated June 20, 1903, renews the thought of settlement. In this letter nearly all the loss is ascribed to the delay. The seller is notified that unless the proposed settlement is accepted, full damages will be demanded.
The defendant did not yield to its customer's claim that it was in default under its contract. On June 24, 1903, its attorney wrote that the account for the price of the fixtures had been placed in his hands for collection, that the work had been accepted, and that payment must be made. He reiterated this demand on July 14, and again on August 12, 1903. A few days later, on August 18, 1903, the Dodge Dry Goods Company became bankrupt, and Edward Murphy, 2d, was appointed receiver of its property. At a later date, he became trustee. While he remained receiver, he was served, on October 6, 1903, with a summons and a requisition in replevin in an action by the seller to regain possession of the fixtures. The claim was then made that title to the fixtures had never passed to the bankrupt, but remained in the seller. That action was brought in the Supreme Court of this state. Its prosecution seems to have been stayed. At all events, nothing was done in it for a year. In the meantime, the receiver retained the show cases and counters, and used them in the business. This use continued from his appointment in August, 1903, until October 10, 1904. On that date, there was a sale of the bankrupt's assets under an order of the court of bankruptcy, and the plaintiff, William E. Murphy, became the purchaser of the fixtures. A few days later, on October 14, 1904, the defendant forcibly took the fixtures from the possession of the purchaser. The seizure was made by the sheriff in the action of replevin. The action was prosecuted to judgment, and *188
the seller's title was sustained. The receiver, the defendant in the replevin action, took the case to the Supreme Court of the United States (Murphy v. John Hofman Co.,
We think that upon this record, the defendant's claim of title is not to be sustained. The argument in its favor is that the Dodge Dry Goods Company refused to accept the fixtures, and that because of this refusal the title never passed. The trial judge took that view, and charged the jury that unless the goods had been accepted, the defendant must prevail. We think the law of the case is in opposition to that ruling. The fixtures had been delivered; and title passed upon delivery. It is true that the buyer made complaints, but even if those complaints are to be construed as a notice of rejection, they did not change the title. The uncontradicted evidence is that the fixtures complied with the contract, and hence the buyer was not at liberty to reject them. In those circumstances, its title was not dependent upon acceptance (Nichols v. Morse,
One other question, since it may arise on another trial, *190
deserves a word of mention. The plaintiff asks us to hold that the judgment of the Supreme Court in the replevin action (Murphy v. John Hofman Co.,
The judgment should be reversed and a new trial granted, with costs to abide the event.
WERNER, HISCOCK, CHASE, COLLIN, MILLER and SEABURY, JJ., concur.
Judgment reversed, etc. *191