
    John B. Doerr and William Fiss, Resp’ts, v. Emily P. Woolsey, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    Sale—Effect of retaining goods with notice of increase of price.
    Plaintiffs sold to defendant a pair of horses which were paid for, but were subsequently exchanged for another pair, which were worth more. On being informed of the difference in price she told her coachman that she would have to see her son, who did her business, but did not return the horses. This statement was not communicated to plaintiffs. Held, that the act of defendant in retaining the horses with notice of the price was an assent thereto; that her statement did not avoid the effect of such retention and that plaintiffs were not bound to give notice to defendant’s son.
    Motion for reargument. For former decision see 25 H. Y. State Reporter, 574.
    Action to recover $200 for a pair of horses sold and delivered to defendant. The motion is made on the ground that the justice overruled the testimony and erred in stating that the statement of defendant was not communicated to plaintiffs, but that it was so communicated; that plaintiffs were thereupon bound to see the son; that the retention was no acceptance; that defendant was entitled under the original contract to retain a pah of horses that would suit her, and that the coachman was plaintiff’s agent.
    
      P. G. Tolman, for motion; R. G. Sehaider, opposed.
   Daly, J.

I have read the evidence- in the case and the briefs, and it does not appear that the general term overlooked anything in either. The original contract to supply defendant with a pair of horses upon the original terms was not lost '- sight of; for it was in view of that original contract and the subse1 quent assent to a modification as to price (assumed from the re-tention by the defendant of the last pair of horses sent to her with knowledge that $200 additional was demanded for them), that the •general term cited the cases of Metropolitan M. Co. v. Dunning, 41 Hun, 638; 2 N. Y. State Rep., 711, and Dent v. N. A. S. Co., 49 N. Y., 390.

The justice who rendered tne judgment and the general term of this court have held that the act of the defendant in retaining the horses with express notice that their price was $200 above the original contract was an assent to such price and agreement to 'pay it The plaintiffs were not bound to give notice to the defendant’s son because he had charge of the negotiation. It was for the defendant, after receiving notice, to refuse the horses, or +o notify her son to negotiate concerning this additional demand if she desired to retain them. It was not until some time after she had received the horses with notice and when a bill was presented for the additional price that she referred plaintiffs to her son; and this did not avoid the effect of her retaining the horses. Besides, the son, when applied to by plaintiffs, refused to bear them.

The motion for a reargument should be denied, with ten dollars costs.

Larremore, Gh. J., and Yak Hoesek, J., concur.  