Weaver v. Wisner

51 Barb. 638, 1868 N.Y. App. Div. LEXIS 22

• Court: New York Supreme Court
• Decided: November 17, 1868
• Status: Published

Opinion

By the Court Murray, J.

Unless this was a cause that should have been submitted to the jury on the questions connected with the recoupment, the court was right in ordering a verdict for the plaintiffs, for the whole price of the apples.

The defendants not having been present at Havana to receive or accept the apples when delivered on board the cars, and they not having paid for, received or accepted them, until they arrived at Middletown, it is a case, not of sale and delivery with warranty, but an executory contract to sell and deliver to the defendants one hundred barrels of good and merchantable apples. The defendants having received the apples, and not having rescinded the contract on examination and discovery of the defects, by a return, or an offer to return the- property, or by giving notice to the plaintiffs that they refused to receive the same in performance of the said contract, and that the apples were subject to their order, have waived the alleged defects; and their right to recoup the damages arising thereupon does not survive such acceptance. The defendants did more. They affirmed the contract and their acceptance of the apples thereunder, by a tender of payment for the apples wich they concede to bo good. They plant themselves squarely on the position that there was a delivery with a warranty. That position cannot be sustained in this case. (Reed et al. v. Randall, 29 N. Y. Rep. 358.) That being so, it was not a case that should have been submitted to the jury on the questions connected with the recoupment, and the court was right in ordering a verdict for the plaintiff.

[Broome General Term, November 17, 1868.

Balcom, P. J. and Boardman, Parker and Murray, Justices.]

The motion to set aside the verdict, and for a new trial, should be denied, with costs.