Strouse v. Love — 42 N.Y. St. Rep. 185

Majority

p. 185

Lemon K. Strouse et al., Resp’ts, v. Horace W. Love, App’lt.

(New York Common Pleas,

General Term,

Filed January 4, 1892.)

Headnote

Principal and agent—Liability for failure to return goods.

Even though goods are delivered to another as agent for sale, the principal has a right at any time to recall the agency and demand a return of the property, and if the agent fails to do so he is liable to his principal for their value.

Appeal from a judgment of the district court in the city of New York for the first judicial district.

H. W. Heifer, for resp’ts; Daniel M. Pavey, for app’lt.

This action was brought to recover the sum of thirty-five dollars, with interest from April 24, 1888, for goods which the plaintiffs claimed they had sold and delivered to the defendant. The answer contains a general denial and sets up a counterclaim for $8.40 for expressage, insurance and storage. The principal question was whether certain law books which had been delivered to the defendant were sold on approbation, or were consigned to the defendant, as agent, to sell.

From the evidence it appears that on the 24th of April, 1886, the defendant called on the plaintiffs and represented himself as a book-seller, and obtained a number of books at wholesale prices. These were sent with a bill marked “ On sale,” and also marked “ Special Prices. To be sold to the Profession only.”

p. 186

This would seem to indicate that the books were originally intended to be sold again, and that the defendant did not purchase them outright at that time; but it appears from the evidence that the plaintiffs more than six months after the delivery of the books, and in the year 1887, sent the defendant a bill for the .books, but did not get any reply, and that thereafter the plaintiffs wrote to him to either send back the books or pay their price. Even if delivered to defendant as agent, the plaintiffs had at any time the right to recall their agency and to demand the return of their property. If the agent failed to do this he was liable to his principal for their value, and not having returned the books or paid the price, we think the justice was right in awarding judgment as he did, and that it should be affirmed, with costs.

Bischoff, J., concurs.