The plaintiffs bring this action to recover the purchase price of certain goods, wares and merchandise which were- concededly sold to the defendant at the agreed price of $124 and upon which the defendant has paid $43.75, and judgment has been entered against the defendant for the sum of $80.25, with the costs of the action. The defendant appeals from the judgment of the City Court.
There is no substantial dispute about the facts. When the consignment of goods arrived at the defendant’s place of business, it was found that some of the goods did not conform to the samples. Some correspondence ensued and the plaintiffs directed the defendant to return such of the goods as it did not desire to keep. The defendant claims to have delivered the rejected goods to the New York Central and Hudson River Railroad Company, consigned to the plaintiffs, whose place of business is in New York city, and
There is no question of fraud or bad faith in the matter; no one suggests that the defendant did not deliver the goods to the railroad company for transportation to the plaintiffs, but the latter contend that as a matter of law the defendant was bound to return the goods to the possession of the plaintiffs as a condition of receiving credit for the same. The plaintiffs’ brief says: “It will be observed that the instructions of the plaintiffs, to which the defendant acquiesced, were not to ‘ ship ’ the goods, but to return the goods to the plaintiffs. Even considered most favorably for the defendant, it was a question of intent and meaning. If the intention of the parties was that the defendant should be relieved of responsibility for the return of the goods when it delivered them to a common carrier, the proposition is one thing; if the intention of the parties was that responsibility should not be released until the goods were actually delivered to the plaintiffs, it is another thing,” and upon this proposition the respondents rest their case.
The plaintiffs are doing business in; the city of-New York, and the defendant is engaged in business in the city of Buffalo. The goods, it may be assumed, were sent by freight through a common carrier, and when
The judgment of the City Court should be reversed, and a new trial granted, with costs to abide the event.
Judgment reversed and new trial granted, with costs to abide event.