O'Sullivan v. New York Lumber Corp. , 61 N.Y.S. 493 ( 1899 )

Oonlan, J.

The action was brought to recover $106.37 and interest, balance claimed to be due on account of a carload of lumber shipped to the defendant by the plaintiff’s assignor. The defendant denied liability, excepting in the sum of sixty-eight dollars and four cents, part of which was due upon another sale of goods. . The answer also contained an offer of judgment in the sum of sixty-eight dollars and four cents, which was not accepted.

It appeared upon the trial that the defendant received the lumber in question, at its premises in blew York city, on the 27th day of April, 1896, and made no objection to its quality or measurement, until the twelfth day following, thus allowing a period of two weeks to elapse between its receipt and any claim for reduction or otherwise, although one of the defendant’s witnesses testified that the defects spoken of were perfectly apparent upon inspection, and that a mere examination would disclose these defects. It is insisted by the defendant that there was no acceptance, until after the correspondence, although the defendant had unloaded the lumber upon its own premises in the face of the fact, testified to in its behalf, that a mere examination would disclose these defects, and made no objection for a period of two weeks. We think this amounted to an acceptance of the lumber by the defendant at the price originally named for the same, and that, under this branch of the case, there was nothing to be submitted to the jury, and that the direction by the trial judge was not error.

If it be claimed that the correspondence created a new contract after delivery, there was an utter failure of consideration to- support it.

We have already seen that there was an acceptance of the goods on the 27th day of April, 1896, when the defendant placed them upon its premises, with the full knowledge and the declaration by it that a more examination was sufficient to disclose the defects, and no objection made until two weeks thereafter. The liability of the defendant thus became fixed on the day the lumber was placed by the defendant in its yard. We are of the opinion that, under all the circumstances, the direction of a verdict was not error, and that the judgment and order appealed from should be affirmed, with costs.

Eitzsimons, Oh. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.