Opinion
May, 1914.
Present — Jenks, P.J., Thomas, Carr, Stapleton and Putnam, JJ.
The former decision in this court ( 147 App. Div. 544, 550) disposes of the question of acceptance. It is true that in the opinion it is said the sale of the goods by the commission merchants was not until some days after the notification to the vendor's agent, whereas it was some hours after. But the agent, receiving the two telegrams at nine-two o'clock A.M., made no reply for several days, although he knew that instructions were asked; that the goods should be treated at once to arrest deterioration and sold at the earliest opportunity, both on account of their condition and the market, and that the defendants declared that they were acting for the vendor and that the goods were not sold but ordered to be sold only, and that a disavowal of defendants' action might stop the sale — in any case, that it would be an answer to the request for instructions and the defendants' proposed action in the vendor's behalf. Of course, the vendor did not want the sale stopped if the goods were at its risk. A sense of ordinary fair conduct in business required the defendants to do what they did, and any attempt at adroitness on the vendor's part should not inure to its benefit. The vendor had a right to stand upon a position that it sold scalded-picked turkeys delivered on the cars at Maysville, Ky., in good condition, and its conduct shows that such was its attitude at the time, although it refused the check of the commission house upon the ground that the defendants had not the right to order the turkeys sold. The jury has found against the plaintiff in the issue submitted to it, and the verdict is not against the weight of evidence. The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.