PICK v. BARTELSTONE et al.(Supreme Court, Appellate Term.Headnote
1. Action for Materials Furnished.Where sketches were delivered to defendant with a view of obtaining an order for work, and were returned by him on receipt of a bill containing a charge therefor, a 1‘ecovery therefor cannot be had in an action for services rendered and materials furnished.
Where sketches werea 'delivered to the defendant with a view of obtaining an order for work, and were returned in such a mutilated condition that they were practically valueless, damages therefor cannot be recovered in an action for services rendered and materials furnished.
Appeal from municipal court, borough of Manhattan.
Action by Louis A. Pick against Oscar Bartelstone and others for work, labor, and services performed and for materials furnished. From a judgment in favor of plaintiff, the defendants appeal.
Argued before BEEKMAN, P. J., and GIEGERICH and O'GORMAN, JJ.Meyer & Friend (Theo. H. Friend, of counsel), for appellants.
Moses Cowen, for respondent.
The uncontradicted proof shows that the sketches were delivered to the defendants for examination with a view of obtaining from them orders for work, and that, when the plaintiff rendered them a bill containing an item of charge therefor, they returned the sketches, and the former then “crossed out” such item from the bill. Under these circumstances, a recovery for work, labor, and services rendered, and materials furnished, cannot be sustained.
The plaintiff contends, however, that the sketches were returned in such a mutilated, condition that they are practically valueless. Even conceding this to be so, damages upon that theory cannot be recovered in the action as now framed.
The judgment must therefore be reversed, and a new trial ordered, with costs to the appellants to abide the event.