Krug v. G. Elias & Brother, Inc. — 217 A.D. 783

Majority

p. 783

Fourth Department,

June, 1926.

Theodore Krug, Appellant, v. G. Elias & Brother, Inc., Respondent.

Headnote

Sales — action to recover purchase price of sale, by sample — evidence that plaintiff could have made delivery — minor objections waived — error to direct verdict for plaintiff on defendant’s motion for part of plaintiff’s claim.

Appeal from a judgment of the Supreme Court, entered in the Erie county clerk’s office on February 4, 1924, upon the verdict of a jury, rendered by direction of the court, directed upon defendant's motion in favor of plaintiff for a part of his claim, and in all other respects dismissing plaintiff’s complaint.

The contract was for the sale of rough gunstocks known to be defective in quality. It was in writing and a sample was furnished. The defendant subsequent to the making of the contract examined the stock on several occasions, obtained other samples and took into its possession a total of 148. There was evidence from which the jury might have found that there were others of the same general shape and quality to enable plaintiff to make complete delivery of the 7,000 defendant agreed to purchase, and that as to minor variances there had been waiver of objections. (Littlejohn v. Shaw, 159 N. Y. 188 .) it was, therefore, error for the court to direct a verdict and the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. Present — Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ. All concur. Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.

Cases cited

Littlejohn v. Shaw 159 N. Y. 188 N.Y. 1899-05-12 p. 783