Citation Numbers: 95 A.D. 71, 88 N.Y.S. 482
Judges: Bartlett
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
The defendant sold a horse to the plaintiff for $125. The agree-, ment of sale provided that the plaintiff should be entitled to return the horse to the defendant within two weeks if there was “ anything the matter with him.” The horse proved to be unsound, and on the last day of the specified period of two weeks the plaintiff sent the animal to the premises of the defendant in the borough of Brooklyn, where the purchase had been made, by a messenger who arrived there at nine-twenty o’clock'in the evening. The defendant was not present, but the messenger found his sister, who refused to receive the horse, saying that the defendant’s stable was closed, and telling him to put the animal up in a neighboring livery stable. - The present suit was brought to- recover the purchase price, $125, and the expense to which the plaintiff was put for keeping him after the offer to return. The Municipal Court has awarded the plaintiff the $125 which he paid, but nothing more, and the defendant appeals to this court. According to the brief ya behalf of the appellant the sole question to be decided is, whether the plaintiff ever returned the horse to the defendant or made a valid or legal "attempt to.do so, and if so, was he prevented by any act of the defendant which would excuse delivery and return within and at a reasonable time.
We think that these questions must be answered in favor of the plaintiff. He was entitled to the whole of the last day of 'the fortnight within which to return the horse. (See Karker v. Haverly, 50 Barb. 79, 85.) As no place was specified in the agreement at which the return might be made, the implication was that the horse must be offered to the seller at the place where the purchase was
The judgment should be affirmed.
All concurred.
Judgment of the Municipal Court affirmed, with costs.