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3 Thomp. & Cook 313

Olney v. Van Heusen

New York Supreme Court

Decided April 15, 1874

New York Supreme Court · decided 1874-04-15

Appeal by defendants from a judgment at circuit in favor of plaintiffs. The action was. brought by William R. Olney and Cyrenus M. Greene against George Yan Heusen and Reuben M. Grems, to recover the value of a number of patent forks. In June, 1870, the plaintiffs were engaged in the business of sell'ng screw forks, and the defendants were also employed in selling such forks, through agents appointed by them, and which forks they procured from the plaintiffs.

Decided 1874-04-15

Mullin, P. J.

¶1The defendants’ counsel insisted on the trial, and in his points on the appeal, that defendants were sureties merely for the Messrs. Clements, and that as the plaintiffs had not complied with defendants’ letter or the order of the Messrs. Clements, they could not recover for the value of the forks. Such a proposition cannot be maintained. The defendants purchased the forks upon their own responsibility; they were charged for them, and are bound to pay for them.

¶2The plaintiffs might have treated the Messrs. Clements as the purchasers, and had they done so, there might be a question whether plaintiffs had so complied with the order as to entitle them to recover. But there is no such question in the case.

¶3The plaintiffs were not bound to show that the forks came to the possession of the Messrs. Clements. Their contract was fully performed when they delivered the forks to a carrier to be taken to Bangor, as directed by Clements.

¶4The judgment is right and must be affirmed.

¶5Judgment affirmed.

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