Standard Advertising Co. v. Gutman

We think that the evidence in this case supports but one conclusion, namely, that the books which were delivered to the defendants conform in all essential respects to the sample, and that the latter had no right to reject them. Both the sample *760and one of the books which were supplied by the plaintiff are before us as exhibits annexed to the return, and a comparison of the two, taking into account the necessary changes for which the order given by the defendants for the books in question provided, shows a substantial compliance with the requirements of such order.

The defendants upon the trial laid great stress upon the claim that the leather covering of the books delivered was of an inferior quality to that exhibited by the sample, and produced two alleged experts to testify upon this subject, neither of whom, however, bore out this claim. Indeed, one of them testified that the leather was in both cases of the same quality.

The claim on the part of the defendants that the calendar, which was to be attached to the outside of the back cover of the books, was upside down, is answered by the plaintiff’s statement that that was the proper way to place it, considering the nature- and use of the books, and there is nothing to show that this contention is not correct. That matter cannot be determined by reference to the sample, because the sample book had no calendar whatsoever. That feature of the book was provided for in the written order, but how it was to be placed was in no way a matter of specification. The other objections' were but feebly mentioned, and in our opinion were insufficient.

For the reasons above stated, we think that the judgment dismissing the complaint was erroneous, and that a new trial should be had.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.