Fitzsimmons v. Woodruff

1 Thomp. & Cook 3

• Court: New York Supreme Court
• Decided: June 15, 1873
• Status: Published

Opinion

Mullin, P. J.

When this case was before' us at a former term, we were of the opinion that the agreement for the purchase and sale of the mantle was not a contract for work and labor, and for that reason-not within the statute of frauds. The only remaining question is, whether there was such a delivery and acceptance of the mantle by the vendee as took it out of the statute.

If there is any case in which a purchaser can be held to refuse to accept an article, because it is not made in conformity to the contract, this is that case. The plaintiff had no opportunity to examine the mantle before it was sent to his house. After he saw it, a part of it was to be changed, and a better article put in its place. In going after it to the depot and carrying it to his house, he was acting for the plaintiff and not for himself. And, as soon as he saw the mantle put up, and before the job .was completed, he notified plaintiff’s agent that he would not accept it, and requested him to notify plaintiff of his refusal to accept. This was all the defendant was bound to do to free himself from liability for an article he did not want and had not purchased. No amount of reasoning and no number of authorities, however large, could make the case plainer than it is made by the mere statement of ike facts. The judgment is reversed and a new trial ordered, costs to abide the event.