Hyperlawhypertext legal database Cambridge Society v. Elliot 98 N.Y.S. 232

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Cambridge Society v. Elliot

98 N.Y.S. 232 Court N.Y. App. Term Decision date 1906-03-26 English

Judges Argued before SCOTT, P. J., and O’GORMAN and NEWBUR-GER, JJ.; All concur.

Delivered by O’GORMAN, J.

Contents

Majority

p. 232
(50 Misc. Rep. 150)
CAMBRIDGE SOCIETY v. ELLIOT.
(Supreme Court, Appellate Term.
March 26, 1906.)

Headnote

Sales — Conditional Sales — Cancellation oe Conteact by Buyeb — Remedy of Selles.
Where a buyer of personalty, under a contract providing for payment in installments and for the retention of title in the seller until the last installment is paid, cancels the contract, and refuses to accept the goods when tendered, the seller may recover the contract price.
[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 1436.]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by the Cambridge Society against Walter M. Elliot. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before SCOTT, P. J., and O’GORMAN and NEWBUR-GER, JJ.
Henry S. Hooker, for appellant.
Musgrave & Warner, for respondent.

The defendant agreed to buy a book at a stipulated price, to be paid in installments, the title to remain in the vendor until the payment of the last installment. The following day the defendant in writing canceled the order, and refused to accept the book when the same was tendered. This action was brought to recover the contract price, and the judgment for the plaintiff is criticised on the ground that, the title not having been transferred to the buyer, the seller’s sole remedy is an action for damages representing the difference between the contract price and the market value. National Cash Register Co. v. Schmidt, 48 App. Div. 473 , 62 N. Y. Supp. 952 , is cited as an authority in support of this proposition. But this court in Ideal Cash Register Co. v. Zunino, 39 Misc. Rep. 311 , 79 N. Y. Supp. 504 , held in a similar case that an action might be brought for the contract price, and the Appellate Division in the Third Department, in Gray v. Booth, 64 App. Div. 231 , 71 N. Y. Supp. 1015 , reached the same conclusion, and refused to follow National Cash Register Co. v. Schmidt, supra.

The judgment should be affirmed, with costs.

All concur.

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