Cohen v. Judd

Lehman, J. The plaintiff on February 8, 1912, went to defendant’s store and brought there, through a Mr. J. Donovan, eleven barrels of horseradish. Donovan told him that the horseradish was in cold storage and gave him an order upon the storage company for the delivery of the eleven barrels. The horseradish belonged to Donovan and the order was signed by Donovan in his own name. The defendant was present during the sale and the defendant stated: ■ “Any time you are ready to take it you can get it.” The defendant thereafter sent a bill to the plaintiff for ninety-four dollars and eighty-eight cents, the purchase .price of the horseradish, and the plaintiff paid the bill in April. The plaintiff sent no notice to the storage company of this order for the delivery of the horseradish and made no demand upon it until the end of August or September, and then the storage company refused to deliver the horseradish on the ground that it had a lien for storage charges on goods stored there by Donovan, [504] amounting to ninety dollars. It was shown that until May first Donovan had other goods in storage sufficient to cover the lien, and up to that date the storage company would have delivered the eleven barrels to the plaintiff upon presentation of the order. Upon these facts the plaintiff was given judgment for the sum paid by him to defendant and also for the damages suffered by reason of an advance in price. The defendant claims that Donovan was the principal on this sale, but the evidence is sufficient to hold the defendant as the agent of an undisclosed principal. I cannot find, however, that the plaintiff has made out any cause of action against it. There is little doubt in my mind but that the delivery of the order followed by the receipt of a check from plaintiff constituted a valid delivery and acceptance of the goods sold. Bussell v. Carrington, 42 N. Y. 118. At that time the plaintiff was not only in possession of an order for the delivery of the goods but he had been specifically informed that “ at any time you are ready you can get it.” It is true that there is some testimony that it was customary to leave horseradish in storage till July or August hut no testimony that it was customary to leave it there at the seller’s risk or subject to the seller’s disposition. For almost three months thereafter the plaintiff could have obtained these goods by presenting his order. When he presented the order more than six months thereafter the goods were refused, not by reason of any default dr wrong doing on the part of the defendant, hut by reason of the claim of the storage company against the former actual owner. If the plaintiff has any redress, it must he against the party actually at fault. The defendant sold him goods which he could have obtained within a reasonable time, and the plaintiff has apparently no cause of action 'against him. Gass v. Astoria Veneer Mills, 121 App. Div. 182. Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Seabury and Page, JJ., concnr. Judgment reversed - and new trial ordered, with costs to appellant to abide event.