Majority
p. 769HELLER v. ALTMAN et al. (Supreme Court, Appellate Term. January 17, 1905.) Argued before SCOTT, MacLEAN, and DAVIS, JJ.
Headnote
1. Sales—Refusal of Buyee to Accept—Remedy of Selleb.A buyer of rags was not justified in refusing to take them, when they were in the same condition when he went after them as they were when he bought them; and the sellers were justified in selling the rags for the best price obtainable, and holding the buyer for the loss.
H1. See Sales, vol. 43, Cent. Dig. § 915.
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Louis Heller against Moritz Altman and others. From a judgment for defendants, plaintiff appeals.
Reversed.
Jacob W. Block, for appellant.
Robert L. Turk, for respondents.
The evidence sustains the conclusion that the rags were ip the same condition when plaintiff went to take them away that they were in when he bought them. In that case he was not justified in refusing to take them, and defendants were justified in'
p. 770
selling them for the best price obtainable, and -holding plaintiff for the loss. That loss, however, amounted only to $3.45. The $10 was deposited with defendants not as a forfeit, but as part payment upon the purchase. Taking the view of the case most favorable to defendants, the plaintiff should have recovered $6.55.
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.