Pugsley v. Devlin — 9 N.Y.S. 630

Majority

p. 630

Pugsley et al. v. Devlin.

(City Court of Brooklyn, General Term.

April 28, 1890.)

Headnote

Sale—Action for Price—Manufactured Articles.

Defendant ordered carts of plaintiffs, to be similar in all respects to carts made for him the previous year, but refused to pay for them on the ground that the carts of the previous year, which he had never seen, were of a different size from that specified in the order. He admitted that he had frequently visited the neighborhood where the carts were stored, and said that he paid for them without examination. Held there was no question of facts as to defendant’s opportunity to see the carts of the year before.

Appeal from trial term.

p. 631

Action by Van Allen Pugsley and Girard P. Chapman against John Devlin. There was a verdict and judgment for plaintiffs, and defendant appeals.

Argued before Clement, C. J., and Van Wyck, J.

Horace Graves, for appellant. E. F. Browne, for respondents.

The plaintiffs, on or about May 18,1888, received from the defendant a written order directing them to make 20 carts, which were to be the same, as to size, wheels, and in all respects, as those made for him by them the previous year. The carts were made and delivered to defendant, who refused to pay therefor on the ground that the carts of the previous year had been made of a different size from the order, and that the defendant had never seen the carts. This defense is peculiar, because the defendant admitted that he had frequently visited the neighborhood where the carts were stored, and said that he had paid for them without a personal examination, or without a report from any one in his employ. We think that the defendant had full opportunity to inspect the carts of the previous year, and that there was no question of fact in respect thereto to be submitted to the jury, and that the requests to charge as to an inspection were immaterial to the issue. We also hold that there was no evidence tending to show fraud on the part of the plaintiffs. The verdict of the jury in favor of the plaintiffs was in accordance with the evidence; and the order denying a new trial, and j udgment, must be affirmed, with costs.