Ballenbacher v. Finney — 12 N.Y. St. Rep. 568

Majority

p. 568

George Ballenbacher, et al., Resp’ts, v. John Finney, et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

1. Acceptance—What does not constitute.

Where machinery was represented to he in good condition at the time at which it was sold and was not so in fact: Held, that the fact that the party to whom it was delivered kept it and used it for a month, was not conclusive proof of acceptance of it, hut equally consistent with an effort to utilize it and avoid controversy in the matter.

S. Payment made nr the Interest of a party without bequest.

A party making a payment voluntarily in another party’s hehalf cannot recover therefor.

William Apgar, for app’lts; W. S. Logan, for resp’ts.

It sufficiently appears that the lathes when ordered were represented to be in good condition, that they did not answer that description.

The qualified acceptance was conditioned upon their being put in good order on behalf of defendants; that was never done.

The use of the lathes for one month does not conclusively prove acceptance. It is equally consistent with an acceptance by plaintiffs, or with a protracted and earnest effort by them, in the interest of defendants, to find a way to utilize the lathes and avoid controversy.

Defendants’ course from the beginning appeared to be ■actuated more by a desire to get the best of the bargain than by a wish to fulfill their own obligations under it.

It is not. surprising that the jury decides all doubtful questions in favor of plaintiffs.

We do not perceive by what rule the plaintiffs were permitted to recover for the return freight paid by them. They made that disbursement in good faith, for defendants’ benefit, but not at their request.

The amount, $-; must be deducted from the recovery, after which the judgment must be affirmed as modified, without costs.