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Heidbrunn v. Weislow

114 N.Y.S. 50 Court N.Y. App. Div. Decision date 1908-12-30 English

Delivered by HOOKER, J.

Contents

Majority

p. 50
(123 App. Div. 532.)
HEIDBRUNN v. WEISLOW.
(Supreme Court, Appellate Division, Second Department.
December 30, 1908.)

Headnote

Sales (§ 343[1] )—Action foe Price—Buyer’s Refusal to Accept.
The seller may tender delivery of goods, and, on the buyer’s refusal to accept, may hold them for him and sue for the price.
[Ed. Note.—For other cases, see Sales, Cent. Dig. § 949; Dec. Dig. § 343.[1] ]
Appeal from Municipal Court, Borough of Brooklyn, Third District.
Action by Isack Heílbrunn against Otto A. Weislow. From a judgment for defendant, plaintiff appealed. Reversed.
Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.
Edward Lazansky, for appellant.
J. Leon Brandmarker, for respondent.

Plaintiff sought to recover the purchase price of goods sold to defendant, and on the trial at the close of all the evidence the complaint was dismissed. Plaintiff appeals.

It was conceded on the trial that the defendant ordered a bill" of goods amounting to $65.66 to be delivered at his place of business; the plaintiff claiming they were to be paid for in cash when delivered, and the defendant insisting that nothing was said in reference to the terms of payment. The goods were actually delivered at defendant’s place of business by plaintiff’s agent, and because the defendant refused to pay cash for them they were taken back to plaintiff, and this action was brought for the purchase price. It seems to be well settled that the vendor of goods may tender delivery, and, on refusal of the vendee to accept, may hold the goods for defendant and sue for the purchase price. Horst v. Montauk Brewing Co., 118 App. Div. 300 , 103 N. Y. Supp. 381 , affirmed 192 N. Y. 29 , 85 N. E. 1111 , "without opinion.

It was error for the trial court to dismiss the complaint, and the judgment must be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

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