Gilbert v. Alton

This is an action by buyer for a breach of the contract of: sale, in that a part of the chattels sold did not conform to the. contract.. The consideration has .been paid and the buyer has *63accepted a large' number of the chattels delivered under the contract. The learned counsel for the appellant insists that the plaintiff,, having failed to return, or to offer to return, the merchandise delivered, cannot recover. But there is evidence which warrants a finding that the plaintiff did this. He testifies that he declined to receipt for the goods, and told the defendant’s bookkeeper, who brought the goods to him, that he would not receive them, at the same time signing a receipt for certain other goods which were acceptable. The plaintiff also testifies that he wrote several letters of rejection shortly after the alleged delivery, with the statement that the goods were held at defendant’s risk and subject to his order. I think this was sufficient evidence of an offer to return the goods. (Stone v. Frost, 6 Lans. 440; affd., 61 N. Y. 614.)

It is further contended that plaintiff elected to retain part of,the goods, and, therefore, cannot recover damages for the part returned. This is not the theory of the plaintiff. It must be borne in mind that the plaintiff does not attempt to rescind the contract in toto, as he has accepted a large number of the chattels. He sues for a breach, in that a part of them, which he contends he rejected, do. not conform to the requirements thereof. The partial acceptance by the vendee does not excuse the vendor for the non-fulfillment of his contract as to the chattels in dispute, but he may be held liable in damages therefor. (Kipp v. Meyer, 5 Hun, 111; Sorg Co. v. Crouse, 88 id. 246, 250; Manning v. Humphreys, 3 E. D. Smith, 218.; McKnight v. Devlin, 52 N. Y. 399.) I do not read Mason v. Smith (130 N. Y. 474), cited by. the learned counsel for the respondent, as opposed to this doctrine. That was an action for the contract pi'ice by the seller, wherein a part of the goods had been returned, and the court, referring to the rest of the goods, say: “If the defendants had not desired to keep the other goods, they should have then rescinded the contract and either returned or offered to return them, and in failing to do this they must be deemed to have elected to retain them under the contract.”

The plaintiff pleads, and the defendant admits, that he has paid the consideration for the contract. And there is evidence which justified the court in the conclusion that the sums set opposite the items were the contract prices agreed upon between the parties. I think, therefore, that the court was justified in fixing, the damage at *64this sum. (Ideal Wrench Co. v. Garvin Machine Co., 65 App Div. 235, and authorities cited.)

The judgment should be affirmed, with costs.

Goodrich, P. J., Bartlett, Woodward ' and Hooker, JJ., concurred.

Judgment of the Municipal Court,affirmed, with costs.