Levy v. Glassberg

DAVIS, J.

Judgment was rendered for the defendant upon his counterclaim of $79, the balance of the contract price of certain articles of furniture to be manufactured by defendant for the plaintiffs. The court below found that all the articles were delivered by defendant according to the contract, except a millinery case. The evidence showed that the millinery case had been completed, but that the plaintiffs told the defendant that he need not deliver it, as they would not accept it, because it was not properly made. This attitude of the plaintiffs made it unnecessary for the defendant to make any further tender, and, under the authorities, he could then pursue one of three courses: He could store or retain the property ,for the vendees, and sue for the entire purchase price; or he could sell the property, and recover the difference between the contract price and the price obtained upon a resale; or he could retain the property as his. own, and recover the difference between the market value at the time and place of delivery and the contract price. Moore v. Potter, 155 N. Y. 481, 486, 50 N. E. 271, 63 Am. St. Rep. 692; Bridgford v. Crocker, 60 N. Y. 627. In the case at bar the answer and the evidence show that the defendant retained the case as the property of the plaintiffs, and sued for the balance of the contract price. In his answer he states that “the plaintiff notified defendant that he would not receive the millinery case; that the defendant has always been ‘ready and willing to perform the contract.” Evidence was given by the defendant tending to support these allegations. Defendant’s bookkeeper, for instance, testified, in effect, that he went to the store of the plaintiffs, and said to them: “There is a millinery case, and we will put it up, and we will see that it is all right.” The plaintiffs answered: “We don’t want the millinery case. We won’t have it. You tell your boss we don’t want the millinery case.” In addition to this, the defendant testified at the trial that he was then willing and ready to deliver the case.

In view of this evidence, it would appear that the defendant had elected to retain the property for the plaintiffs, and not as his own. If so, he has a good cause of action, under the authorities, for the balance of the contract price.

The judgment should be affirmed, with costs to the defendant