Citation Numbers: 24 Misc. 186, 52 N.Y.S. 629
Judges: Gildersleeve
Filed Date: 7/15/1898
Status: Precedential
Modified Date: 1/13/2023
The pleadings herein are oral. It appears from the return that the action is for a 'conversion, and that the answer is a general denial. The testimony shows that defendant received from the “Premium Trading Stamp Company” certain stamps, under a contract which required the defendant, who was a trader, “ to furnish to all customers, who shall ask for them, these stamps to the par value of every ten cents of purchases made by every purchaser.” The contract further provides that defendant shall pay weekly to the said company the sum of fifty cents per 100 stamps so distributed to purchasers, and shall return the stamps to the company, on demand.
The contract contains some other provisions, but the stipulations above set forth are all that need be considered in determining this appeal. It appears from the testimony that plaintiff purchased from the company the business^ and contract in question, and succeeded to whatever rights the company had.
No light whatever upon the controversy here can be gathered from the oral pleadings. From a careful examination of the testimony we understand that the action was brought to recover damages for stamps which the plaintiff, of his assignor, had furnished to the defendant, under the contract above referred to, and which the defendant, according to the claim, of plaintiff, failed to return to plaintiff on demand. It is undisputed that defendant, having at the time in his possession $10 worth of the stamps in question, held under the terms above mentioned, disposed of his place of business to one Kain, and that, among' the articles left at the said place, so purchased by Kain, were the said stamps. Defendant swears that Kain promised to return the stamps to the plaintiff. It appears, however, from the testimony of Mrs. Kain that her husband gave her the stamps, so left in the said place of business;, and that thereupon she presented them to the plaintiff for redemption, or, more strictly speaking, for a present, as it would seem that, in pursuance of the custom, the party presenting the stamps might receive a present. The present, however, was refused, because the stamps had not been issued to customers in the regular course of trade, and the stamps were kept by the plaintiff.
As these stamps came lawfully into the possession of the defendant, a demand for their return and a refusal to return them must
We think the justice did right in giving judgment for the' defendant, and that the judgment should be affirmed, with costs.
Beekman, P. J., and Giegerich, J., concur.
Judgment affirmed, with costs.