Rouse v. Printers' Exchange Co.

33 N.Y.S. 55, 12 Misc. 114, 66 N.Y. St. Rep. 698, 1895 N.Y. Misc. LEXIS 337

Opinions

DALY, C. J.

The plaintiffs sued to recover $53,—$50, a deposit in advance on the purchase price of a printers’ outfit, consisting of second-hand materials, which defendant agreed to deliver on May 10th; and $3 deposited for cartage. On the day appointed for delivery, as well as the day before, the plaintiffs went to the defendant’s place of business, saw the type which defendant proposed to deliver, or some part of it, and found that it was in poor condition and defective, and objected to it; and defendant made no offer to deliver suitable articles.. Next day plaintiffs demanded back their deposit, which was refused. The defendant offered evidence showing that the type was in good condition and suitable, and that when complaint was made defendant offered, if anything was wrong, to give other things. Plaintiffs’ evidence was that defendant promised to make everything satisfactory, but that this was on the Monday prior to the day of delivery. There was, therefore, a conflict of evidence as to whether the defendant was ready to deliver suitable goods when called for by the contract, or offer to make such delivery after complaint. On the issues thus presented the justice found for the plaintiffs, and his decision upon the evidence should not be disturbed. It is claimed that plaintiffs’ refusal to accept was in bad faith, they having meanwhile got a better bargain elsewhere; but there was a conflict of evidence upon the facts with regard to that contention. There was no motion to dismiss the complaint at the close of the case, which was thereby conceded to present a-question of fact for the decision of the justice. No exceptions are presented by the record. The judgment should be affirmed, with costs.

BISCHOFF, J., concurs.