54 Barb. 80 | N.Y. Sup. Ct. | 1869
By the Court,
The disposition made of this case at the circuit, I think, was entirely correct.
Three witnesses, Sears, Peters and Oldfield, testified that the liquors were sold and sent to Oldfield, under an agreement that if he sold out his hotel he might send back the unsold liquors to the vendors whom the plaintiff represents. Peters says the agreement was that “if he sold out he was to ship them or sell them, and take -a
The delivery of the liquors at the depot for reshipment to the vendor reinvested him with the title to the goods,' even assuming that the title passed on thé delivery of the goods by Sutton to Oldfield.
There is no contradiction of the testimony of Peters and Oldfield in regard to the original contract, and it must, therefore, be assumed to be true. The redelivery was therefore in pursuance of the original contract, and clearly changed the title, within the case of Sturtevant v. Orser, (24 N. Y. Rep. 538.) The assent of the vendor to receive back the property in case Oldfield sold out, made such delivery valid and effectual to ves.t the title as upon resale of the property. .
The bill of particulars which accompanied the goods from Sutton to Oldfield does not, as I can see, affect this question. It was a description of the. goods, such as is. generally furnished by vendors, and is not conclusive on the question upon what terms the goods were sold. It is doubtless prima facie evidence of a sale, but it does not preclude the vendor from showing the actual facts respecting such sale. But giving it the fullest effect, I think the election of Oldfield to return the goods not paid for, and. his delivery of them to the carrier for that purpose, reinvested Sutton with title to the goods, within the case of Sturtevant v. Orser, (supra.)
A new trial should, therefore, be denied, and judgment given for the plaintiff.
Hew trial denied.
E. D. Smith, Johnson and J. C. Smith, Justices.]
