Cambridge Society v. Elliot

O’GORMAN, J. The defendant agreed to buy a book at a stipulated price, to be paid in installments, the title to remain in the vendor until the payment of the last installment. The following day the defendant in writing canceled the order, and refused to accept the book when the same was tendered. This action was brought to recover the contract price, and the judgment for the plaintiff is criticised on the ground that, the title not having been transferred to the buyer, the seller’s sole remedy is an action for damages representing the difference between the contract price and the market value. National Cash Register Co. v. Schmidt, 48 App. Div. 473, 62 N. Y. Supp. 952, is cited as an authority in support of this proposition. But this court in Ideal Cash Register Co. v. Zunino, 39 Misc. Rep. 311, 79 N. Y. Supp. 504, held in a similar case that an action might be brought for the contract price, and the Appellate Division in the Third Department, in Gray v. Booth, 64 App. Div. 231, 71 N. Y. Supp. 1015, reached the same conclusion, and refused to follow National Cash Register Co. v. Schmidt, supra. The judgment should be affirmed, with costs. All concur.