Jacobs v. Day
New York Court of Common Pleas
Appeal from second district court. Action by Lester Jacobs against John Day and others to recover purchase money paid by plaintiff’s assignor on the sale of merchand'ise by sample, the sale having been rescinded by the buyer-on the ground that the bulk delivered failed to correspond to the sample shown at the time of the sale. There was a judgment in. favor of plaintiff, and defendants appeal.
1Opinion of the CourtBischoff, J.
The circumstance, merely, that at the time of the sale a sample was produced, is not sufficient to constitute the-sale one “by sample.” Hargous v. Stone, 5 N. Y. 73; Beirne v. Dord, Id. 95. To have that effect it must be fairly inferable from, the evidence that the parties mutually understood, or at least that the seller intended the buyer to understand, that the bulk of the commodity sold should in kind and quality be equal to the sample shown. Beirne v. Dord, supra; Ames v. Jones, 77 N. Y. 614. That a portion of the bulk of the goods sold was examined1, by the buyer at the time of the sale…
2Cases cited6 opinions
- Fuller v. . KempNew York Court of Appeals · 1893
- Kromer v. . HeimNew York Court of Appeals · 1879
- Hargous v. . StoneNew York Court of Appeals · 1851
- Gallagher v. WaringNew York Supreme Court · 1832
- Osborn v. . GantzNew York Court of Appeals · 1875
1 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Continental Gin Co. v. ArnoldSupreme Court of Oklahoma · 1915
- First Nat. Bank of Tishomingo v. LathamSupreme Court of Oklahoma · 1913