
    Patrick Russell, Respondent, v. Edmund Wolff et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1897.)
    Sale — Right to exchange.
    Plaintiff purchased a horse of defendants with the right to send it back if it did not suit and get another and to keep sending back until he obtained one that would suit. He paid part of the purchase price in cash and gave his note for the balance. The horse did not suit, and he sent him back and took another, and continued to do so several times, giving notes for- the difference in value. He finally sent a veterinary surgeon to choose a horse for him, and paid defendants therefor a sum "which, with the sum previously paid, made the full purchase price of such horsed The defendants, however, refused to let him have the horse, refusing to recognize the former payment as applying to the last transaction, or to return his money or notes. Held, that there was but one continuous transaction, and that the refusal to deliver the horse gave plaintiff the right to recover the money paid and notes given by him.
    Appeal by defendants from judgment of the Tenth District Oourt.
    Herman H. Baker, for appellants.
    Tierney & Halsey, for respondent.,
   MoAdam, J.

The action is to recover $135 paid to the defendants under the following circumstances:

About July 28, 1896, the plaintiff purchased a gray horse from the defendants, who keep a sales stable. The price was $150, on which the plaintiff paid $60, and gave his note at two months for the balance, $90'; at the same time executing an agreement that the title to the horse should remain in the defendants until it was fully paid for. It was agreed at the time of the purchase that if the horse did not suit the plaintiff he might.send it back and get another, as the defendants had plenty of horses on hand, and that the plaintiff might keep on sending back until he obtained a horse that would suit him:

The gray horse was sent to the plaintiff’s stable, and on the night of its arrival kicked down the stall and the stable door. The plaintiff sent it back, and got a brown horse instead at the same- price. When this brown horse was hitched up next morning in the plaintiff’s stable it kicked in the front of the wagon. This horse was also returned, and a third horse taken in its place at $165, the defendant giving another note for the extra $15. The third horse was examined by Dr. Doyle, a veterinary surgeon, and on his recommendation was likewise returned. Whereupon the plaintiff got a fourth horse at $200, giving a note for $35 more. According to the evidence the fourth horse proved “ tender forward; ” and it was on that account returned. In each instance the return was made promptly.

The plaintiff, concluding that he had experimented enough on his own judgment, sent Dr. Doyle to the defendants’ stable to pick out a horse for him. Doyle went to the stable and said he desired a horse for a poor man who wanted it as cheap as pos- ' sible, and that he expected his tiian there shortly. ■ Doyle examined the defendants’ horses' and picked out óne, and the defendants fixed the price at $135. When the plaintiff came Doyle said to the defendants, This is my man.” The horse- was hitched up to one of the defendants’ wagons, tried and fonnd to be satisfactory. The plaintiff paid the defendants $75 in cash, which, with the $.60 in cash previously' paid, made the full purchase price, $135. He thereupon asked, for the horse, but the defendants said, he could not have it until'he paid $60 more, as the $60 previously paid did not count on that transaction. The plaintiff demanded the return lof the $75 paid and' the notes which he had given, but the defendants refused to give up the money, the horse or the notes, and afterwards explained to the witness Tierney that the reason .was that the plaintiff had fooled them by sending a veterinary surgeon around to pick out a horse; that they had the money, and they were going to keep it.

It appears by the evidence that the defendants sold- the first four horses at better prices iban those agreed to be paid, by the plaintiff.

The defendants’ theory seems to be that the first foiir transac-tions represented so many independent sales, and that the balance .on each of them was due. This is a mistake. According to the plaintiff’s evidence (which the justice believed to be true, and which We accept as settling the facts) the defendants were obliged to keep on furnishing horses to the plaintiff until he was satisfied; that,was their contract, the only control reserved by the defendants being as to the price on the exchange. In fact each transaction was a substitution of one-horse for another, leaving the contract in full force.

Even if this were not so, the acts of the parties evidence a rescission as to the first four horses, leaving the plaintiff in a position to demand the return of the $60 paid and the three notes given. Collins v. Brooks, 20 How. Pr. 327; Sturtevan v. Orser, 24 N. Y. 538; Grouse v. Wolf, 4 Misc. Rep. 535; 54 N. Y. St. Repr. 132; S. C., 34 N. Y. Supp. 703; Fulton v. Met. Life Ins. Co., 4 Misc. Rep. 76; 53 N. Y. St. Repr. 172; Coon v. Reed, 1 Hilt. 511.

When Dr. Doyle selected the $135 horse, and the defendants closed the sale to the plaintiff by accepting the $75 which he paid on the substitution of horses, the plaintiff by force of the contract was entitled to have the $60 previously paid applied on account of the purchase, and also to a return of the three notes. The defendants’ refusal to deliver the $135 horse gave the plaintiff, under the circumstances, a clear right to a return of the $135, and this in effect is what the justice decided. Vide, supra.

The judgment was right, and must be affirmed. •

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed.

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