Levino v. Moore Co. — 97 A.D. 109

Majority

p. 109

Bernard Levino, Jr., Respondent, v. The Moore Company, Appellant.

Headnote

Sale — delivery of labels with the venders name thereon in excess of the number ordered — the vendee must either,pay for or return the excess.

Where a lithographing company delivers 129,000 sets of labels to a corporation, which had contracted to purchase 100,000 sets,' the vendee corporation must either pay for the excess of labels or else return them to the lithographing company unconditionally.

The fact that the labels bear the name of the vendee corporation does not entitle it to refuse either to pay for the excess of labels or to return the same, except upon condition that the lithographing company would destroy the same by running a knife through them. ■

Appeal by the defendant, The Moore Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the '25th day of January, 1904.

George P. Breckenridge, for the appellant.

George E. Miner, for the respondent.

The plaintiff, as assignee of the MacMillan Lithographic Company, brings this action to recover a balance claimed to be due from the defendant for labels. The answer denies most of the material allegations of the complaint. Upon the trial the evidence fully supported the claim of the plaintiff, and the judgment appealed from should be affirmed.

It appears from the evidence that the defendant had contracted

p. 110

with the MacMillan Lithographic Company for 100,00© sets of labels ;■ that these labels were furnished and delivered, and that some 29,000 additional sets of labels were also delivered to the defendant. The answer admits that, there were more than 100,000 sets delivered, and the proof seems to be that this excess was the number stated, although upon this point there was something of ■ a conflict of evidence. The defendant, admitting that it had received more than the 100,000 sets, refused to pay for the excess, or to surrender the same, except upon the condition that the plaintiff or his predecessors in interest would destroy the same by running a knife through them. We are clearly of opinion that the defendant was bound to pay for the excess of labels or to surrender1 the same unconditionally to the plaintiff. The mere fact that the label contained the name of the defendant, and that there was a suggestion that the plaintiff might sell the same to rivals of the defendant, did not operate to give the latter any right to dictate the terms on which it would surrender the property of the plaintiff. If it did not intend to accept these labels it was its duty to surrender the. same to the plaintiff. If the latter undertook to make an unlawful disposition of the same the courts could be called upon to interfere, but it does not follow that the defendant' could retain the goods or dictate the terms on which it would surrender the same. ' If it kept the goods it was bound to pay for them. (Randall v. National Ice Company of New York, 46 N. Y. St. Repr. 787 .) The mere fact that the original contract only called for 100,000 sets of labels does not operate to give the defendant the right to use or control the excess of labels which were delivered without paying for the same, even though the plaintiff might make an unlawful disposition of the labels. The law will not presume that any one intends to do that which is unlawful, and even if the plaintiff had threatened to .make an unlawful use of these labels it was not for the defendant to restrain such action; we maintain courts for such purposes, Where the interested parties may appear before an impartial tribunal for the adjustment of their differences.

The judgment appealed from should be affirmed, with costs.

All concurred ; Bartlett, J., in result.

Judgment of the Municipal Court affirmed, with costs.