Schrimpton v. Schener — 39 N.Y. St. Rep. 54

Majority

p. 54

Alfred Schrimpton et al., Resp’ts, v. Samuel Schener et al., App’lts.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

Vendor and purchaser—Sale by sample—Evidence.

Upon the trial of an action to recover purchase price of goods sold on

p. 55

sample, as defective, there was a conflict of evidence as to how the defective goods were to he returned. Held, that there being abundant evidence to sustain the finding of the justice this court would not disturb the judgment on that account.

Appeal from a judgment rendered in the district court of the city of New York, for the seventh judicial district.

George C. Coffin, for resp’ts; Lyman Rindskopf, for app’lts.

—The appellants’ counsel is mistaken in supposing the sale of the 400 gross of needle cases in controversy was not by sample. The contract itself expressly says that the sale was by sample, and the case shows that after the delivery of the first lot of goods under the contract, immediately upon the discovery that some of them were defective, the defective ones were returned to the defendants.

The plaintiffs’ case contains testimony tending to show that there was then an agreement made by which the plaintiffs were to return the defective goods altogether, and after the entire order had been filled, and not in small lots as the defects were discovered. It is true this is contradicted by the defendants, but on this point there is conflict of evidence, which it was peculiarly the province of the trial justice to determine, and there being abundant evidence to sustain his finding this court will not disturb the judgment on that account. And the same is true of all the other questions raised by this appeal.

The judgment should, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.