Shields v. Meyer — 1 N.Y.S. 585

Majority

p. 585

Shields v. Meyer.

(Supreme Court, General Term, Third Department.

May 17, 1888.)

Headnote

Obdebs — Fob Deliveey of Meechandise—Application by Deawee to a Fobmeb Debt.

The drawer of amorder for merchandise is not liable thereon where the merchant on whom it is drawn, instead of delivering the goods as requested, applied the amount of the order on an old account which he had against the person in whose favor it was drawn.

Appeal from Warren county court; A. J. Cheritree, Judge.

Action by Lewis Shields against Theodore F. H. Meyer, to recover the amount of an order for merchandise drawn by defendant upon plaintiff in favor of Henry Granger. J udgment for plaintiff, and defendant appeals.

p. 586

Argued before Learned, P. J., and Landon and Ingalls, JJ.

8. c6 L. M. Brown, for appellant. H. Prior King, for respondent.

We think that this judgment cannot be sustained. The order signed by defendant requested plaintiff to let Granger have merchandise, as desired, to á certain value. The plaintiff did not let Granger have merchandise pn receipt of the order, but, on the contrary, applied the amount of the order on an old account which he had against Granger. He therefore did not do what the defendant requested, and hence the defendant is under no obligation to pay. The defendant can only be held liable on his agreement; that was to pay for merchandise which plaintiff should let Granger have. It is of no consequence to this case whether defendant owed or did not owe Granger'. If plaintiff had complied with the order, he could have recovered; as he did not, he cannot. Judgment reversed, with costs.