107 N.Y.S. 765 | N.Y. App. Term. | 1907
Some time previous to -February 14, 1906, the defendant purchased some eight or ten cases of goods from plaintiff, all of which were delivered on February 14, 1906. Two cases, constituting the subject-matter of this action, were returned by defendant to plaintiff on February 15, 1906, as not being the goods ordered. On May 39,1906, defendant sent to plaintiff a check for $481, upon which he indorsed the words: “The amount of this check, $481, in payment of all bills to date.” The plaintiff, on receiving the check, struck out the words so 'indorsed, without notice to defendant, and deposited the same to his own credit, and collected the money thereon. He also wrote a note to defendant, saying that defendant still owed $1.60 for interest, and that he credited the amount of the check against defendant’s account. Nothing, however, was said as to anything being still due for the goods returned on February 15th, some three months previous to the sending of the check. Plaintiff claims there was some question about the receipt of these goods by plaintiff,'and it was understood that the claim as to the returned goods was to be held in abeyance until the facts were ascertained in respect thereto.
The evidence clearly shows that the goods in question were, in point of fact, returned by defendant to plaintiff on February 15th, and there is no positive proof that they were not received by plaintiff, 'while, on the contrary, there is evidence of admissions by plaintiff of the receipt of the goods. Certainly it would not seem that it required more than three months to ascertain whether or hot the'goods had been received by plaintiff. Under the evidence presented, we are of opinion
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.