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Pope v. Fairchild

117 N.Y.S. 575 Court N.Y. App. Div. Decision date 1909-06-11 English

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p. 575
POPE v. FAIRCHILD.
(Supreme Court, Appellate Division, First Department.
June 11, 1909.)

Headnote

Sales (§ 280[1] )—Condition of Guaranty— Guarantor’s Liability.
Where a guaranty was only to apply in case of a sale of certain machines to another, and the machines were merely sent to him for approval, after they were tested and were returned without a sale, no liability arose under the guaranty.
[Ed. Note.—For other cases, see Sales, Dec. Dig. § 280.[1] ]
Appeal from Trial Term, New York County.
Action by Albert L. Pope, as receiver of the Pope Manufacturing Company, against Charles Fairchild. From a judgment for plaintiff upon a directed verdict, defendant appeals.
Reversed, and new trial ordered.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
Selden Bacon, for appellant.
Lewis H. Freedman, for respondent.

The obvious construction to be given- to the guaranty sued upon is that it was intended to apply in case of a sale of.the machines to Wanamaker. The evidence is that there was no sale, but

p. 576
that certain machines were sent to Wanamaker on approval and for purposes of demonstration, and that they were afterwards returned. No liability, therefore, arises under the guaranty as the evidence stood.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.