Pugsley v. Devlin — 31 N.Y. St. Rep. 814

Majority

p. 814

Van Allen Pugsley et al., Resp’ts, v. John Devlin, App’lt.

(City Court of Brooklyn, General Term,

Filed April 28, 1890.)

Headnote

Sale—Acceptance.

In an action for the pricp of carts ordered by defendant to be made the-same as those of the preceding year, he defended on the ground that those made the preceding year were of a different size from the order, and that he_ had never seen them. He- admitted having frequently been in the neighborhood where they were stored, and said he paid for them without examination or report from his employees. Held, that he had full opportunity for inspection, and that there was no question of fact in that respect.

Appeal from judgment in favor of plaintiffs.

Horace Graves, for app’lt; E. F. Browne, for resp’ts.

The plaintiffs, on or about May 18, 1888, received from the defendant a written order directing them to make twenty 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 óf 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 judgment, must be affirmed, with costs.

Clement, Ch J., and Yan Wyck, J., concur.