Taylor v. Esselstyn

62 Misc. 633, 115 N.Y.S. 1105

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1909
• Status: Published

Opinion

Lehman, J.

This is an action for goods sold and delivered under a contract for. the sale of books at the agreed price of eighty dollars to be paid in monthly instalments of four dollars each, title to remain in the plaintiffs until the payments are completed. The plaintiffs introduced the contract in evidence, and proved the delivery of the books, the payment of one instalment and that all the remaining instalments were then due and owing. The appellant claims that, inasmuch as the contract reserved the title in the plaintiffs until the payments were complete, the plaintiffs cannot bring an action based on the theory of title having passed to the defendant upon delivery.

Until all the -instalments were due, the plaintiffs could not bring an action for goods sold and delivered and claim the entire price (Mansfield v. Strauss, 68 N. Y. Supp. 682) ; but, after all the payments were due, the plaintiffs could regard this contract as a cash sale made upon the same reservation of title. They would, thereupon, have the election of disaffirming the sale and replevying the goods, or of enforcing the sale and suing for the. price. Kirk v. Crystal, 118 App. Div. 32; affd., without opinion, 193 N. Y. 622. Until they have indicated their election by some unequivocal act, they have the right to affirm or disaffirm the sale. In this case, they have not previously made such election by demanding back the books, although it appears that they may have suggested that a return of the books voluntarily by the defendant would make a proper adjustment.

The plaintiffs, therefore, have a right to maintain this action. :They are entitled to interest upon the instalments from the date when they were due, without any demand.

The judgment should be affirmed, with costs.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.