International Tile & Trim Co. v. Ahlers

18 N.Y.S. 883, 46 N.Y. St. Rep. 151, 64 Hun 634

• Court: New York Supreme Court
• Decided: May 9, 1892
• Status: Published

Opinion

Pratt, J.

The mantels and fireplaces contracted for were for ornament, not use. Their whole value was to be in the beauty and elegance they were expected to add to the rooms in which they were to be placed. The orders were given from samples on exhibition in plaintiff's showroom, and were to be executed according to the sample. The performance was not according to the sample, and was so imperfect that instead of being ornamental it was a disfigurement; and, as the only value of the mantels and fireplaces was in the expected ornamentation, no benefit was conferred on defendant. There was some effort made to show that defendant had accepted the work, but we think nothing that could relieve plaintiff from the result of its breach of contract. The mantels were in place, and it is not reasonable to require that defendant should take them out and return them to the plaintiff. On the contrary, if plaintiff abandons the attempt to fulfill its contract, and wishes to recover the mantels, it should assume the burden of taking them away, and restoring the rooms to their original condition. Judgment reversed on the facts. Hew trial ordered at circuit, costs to abide event. All concur.