Knabe v. Flameless Gas Stove Co.

Full title: HENRY KNABE, Respondent, v . THE FLAMELESS GAS STOVE Co., Appellant

Court: Supreme Court, Appellate Term

Date published: Jan 1, 1897

19 Misc. 152 (N.Y. App. Term 1897)

43 N.Y.S. 205

Opinion

January, 1897.

Adam E. Schatz, for appellant.

Hiram Ketchum, for respondent.

McADAM, J.

The action is by the plaintiff, as assignee of the firm of James Gallagher Sons, to recover a balance due for twelve bronze castings and 159 aluminum bronze castings, manufactured and delivered to the defendant. The answer is a general denial.

The president of the defendant gave a verbal order to the plaintiff's assignors for twelve composition bronze castings, and produced a pattern of the kind he wanted. They were manufactured and proved satisfactory. Thereafter a second order was given for the castings in suit, to be made of the same materials as those furnished on the first order, except that there should be added four per cent. of aluminum to prevent tarnish. These were delivered to and accepted by the defendant. Pierson v. Crooks, 115 N.Y. 539.

The defense was that the castings furnished on the second order were useless because their composition, irrespective of the aluminum added, was different from that of the first castings, and, therefore, they did not comply with the contract. The defendant undertook to prove the difference of composition by a government metallurgist, and the exclusion of a question to him on that point is assigned as error.

The ruling was right. If the defendant intended to rely upon rescission it ought to have returned the castings. Story on Sales, § 426; La Folette v. Noble, 13 Misc. 574; Hallahan v. Webber, 7 A.D. 122. If it did not so intend, it ought to have treated the contract as one containing a warranty, and recouped as damages the difference between the actual value of the articles delivered, with all their defects, and what they would have been worth if they had conformed to the warranty. Story on Sales, § 454; 1 Sedg. on Dam. (7th ed.) 606; Bach v. Levy, 101 N.Y. 511; Bayl. Code Pl. 275, 276, and cases cited. It did not adopt either course, and is not in a position to complain of the ruling made.

Judgment affirmed, with costs.

DALY, P.J., and BISCHOFF, J., concur.

Judgment affirmed, with costs.