Heilbrunn v. Weislow

Hooker, J.: Plaintiff sought to recover purchase price of goods sold to defendant, and on the trial at the close of all the evidence the complaint was dismissed. Plaintiff appeals. It was conceded on the trial that the defendant ordered a bill of goods amounting to sixty-five dollars and sixty-six cents, to be delivered at his place of business, the plaintiff claiming they were to be paid for in cash when delivered and the defendant insisting that nothing was said in reference to the terms of payment. The goods were actually delivered at defendant’s place of business by plaintiff’s agent, and because the defendant refused to pay cash for them they were taken back to plaintiff and this action was brought for the purchase price. It seems to be well settled that the vendor of goods may tender [533] delivery and on refusal of the vendee to accept, may hold the goods for defendant and sue for the purchase price. (Horst v. Montauk Brewing Co., 118 App. Div. 300; affd., 192 N. Y. 555, without opinion.) It was error for the trial court to dismiss the complaint, and the judgment must be reversed. Woodward, Jenks, Gaynor and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.