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3 E.D. Smith 218

Manning v. Humphreys

New York Court of Common Pleas

Decided September 15, 1854

New York Court of Common Pleas · decided 1854-09-15

The plaintiff in this action, according to the testimony adduced by him on the trial, purchased, at the defendant’s store, various articles of cabinet furniture, each for a specified price, which was paid. The whole having been delivered, the plaintiff, upon discovering that one article varied from that agreed upon at the sale, returned it to the defendant and brought this suit to compel him to refund the amount paid for the article in question.

Decided 1854-09-15

By the Court. Ingraham, First J.

¶1The justice rejected the defendant’s testimony and gave credit to that of the plaintiff. As it was contradictory, he had a right to decide on the relative credibility of the witnesses.

¶2The plaintiff’s testimony showed a state of facts which justified the judgment rendered.

¶3The only point necessary to notice is the second in the notice of appeal, that the sale was entire and the plaintiff could not retain part and return the other. This would be so if the articles were sold in one lot; but where different articles are sold at distinct prices, and one of them is not according to the contract, it is not necessary to return the other articles, although purchased at the same time. The purchaser may return the defective article and recover the price paid therefor.

¶4We see no reason for interfering with the judgment.

¶5Judgment affirmed.

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