Guild v. Huwer , 50 N.Y. St. Rep. 560 ( 1892 )

Van Wyck, J.

According to the pleadings and the charge of the trial judge, the right of plaintiff to recover was defeated if the goods contracted to be purchased from the defendant, were, in law, delivered upon the complete manufacture thereof, though remaining in defendant’s factory. The testimony tends to show, and the jury thereupon finds, that the plaintiff agreed to purchase, at fixed prices, certain goods from the defendant, to be manufactured, the defendant agreeing to retain possession thereof at his own risk till they were actually delivered upon plaintiff's orders. We see no reason to disturb this finding of the jury that the goods were not delivered. The testimony that the goods were to be retained by defendant at his own risk till they were actually delivered upon plaintiff’s orders, was clearly admissible under the pleadings, to show that it was the intention of the parties that nothing short of actual manual delivery, on plaintiff’s orders, should be deemed a delivery.

Judgment and order must be be affirmed, with costs.

Clement, Ch. J., concurs.

Judgment affirmed.