
    The Equitable General Providing Company, Appellant, v. Myer J. Stein, Respondent.
    (Supreme Court, Appellate Term,
    April, 1896.)
    1, Sale — Conditional — Offset for repairs.
    On a conditional sale of a' bicycle, accompanied by an oral agreement by the vendor to keep.it in repair for a year, the vendee cannot offset the amount paid by him to the manufacturer for repairs during that period, in the absence of 'proof that the vendor consented to such • ■ payments or undertook, even inferentially, to reimburse him. therefor.
    
      2. Same — Waiver.
    An offer by the vendor, after a default, to return a portion of the machine, which had been sent to him for repair, if the vendee would pay the amount in default and also a siim not yet due, which was refused, will not constitute a waiver of the default.
    Appeal from a judgment for the defendant rendered by the-District Court in the city of New York for the first judicial district. Action for the conversion of a chattel.
    Louis L. G. Benedict, for appellant. ■
    Wales F. Severance, for respondent. '
   Bischoff, J.

The defendant in July, 1895, obtained from the plaintiff a bicycle, under an agreement which was in form a lease of ■ the chattel, providing for payment of $10 upon the 20th day of each month thereafter, the plaintiff agreeing to give a bill of sale to the defendant when ten such payments should have been made, title to remain in the plaintiff meanwhile, and the whole sum to be due at once upon any one default on the defendant’s part.

Without objection, and by ample evidence, a contemporaneous oral agreement upon the part of the plaintiff to keep the machine in repair for one year was shown at the trial, and, while there was a conflict of testimony upon the point, we take the fact to have been' determined favorable to the defendant.

The payments due in July and August were made, hilt the instalment for the 20th of September was at no time met.

The bicycle was manufactured by the Overman Company, and was by the latter delivered upon the plaintiff’s- order to the»defendant, who, prior to some unspecified date in August, 1895, had taken it for repairs to the manufacturer, with the knowledge of the plaintiff, and these repairs were made without charge except in one instance when the- sum of $4.50 was demanded by such manufacturer, the Overman Company, and paid by the defendant. There is no evidence, however, that the plaintiff acquiesced in this payment or assumed in any way, even inferentially, to reimburse the defendant for sums expended in repairs.

Whatever course of dealing was shown was one whereby the Overman Company was to repair without charge to the defendant, and that this was the understanding of the latter appears from his-taking the machine for repairs thereafter directly to .the plaintiff, the party who had agreed to malee them.

After default of the September payment the defendant sent the rear wheel of the bicycle to the plaintiff for some further repairs, but the latter retained it, and one of its agents, on the 18th day of October, called upon the defendant and offered a return of the wheel should the payments for September- and October be then made. To this the defendant answered that he would pay $5.50, claiming the right to deduct the payment made to the Overman Company for repairs, and insisting that the October payment was not then dire, which, indeed, it was not.

Thereafter, on the 31st day of October, demand. was made for the return of the bicycle, and, upon the defendant’s refusal, this action for its conversion was brought. From the above facts it appears that the defendant was in default of the September payment and that the plaintiff was entitled to recover at least the value of its property, which the defendant retained without right, by the terms of the agreement, after demand.

Assuming that the plaintiff’s agent had authority to waive this-default, there is no evidence that it was waived, since the offer to-return the portion of the machine retained by the plaintiff upon condition that the October payment be made before it was due was in fact the tender of a new agreement, based upon a consideration, which- was refused, and the fact of the default was left unaffected.

Moreover, apart from the defendant’s contractual duty to have made the September payment at the plaintiff’s office, upon the date specified, in which duty he failed, his readiness thereafter to pay $5.50 instead of $10 did not absolve him from his default, since the latter sum was, upon the evidence, fully due to the plaintiff.

Sufficient evidence, which could not he arbitrarily discredited, appeared in support of some value in the chattel which the defendant retained, and -the judgment, against the plaintiff was upon the facts, unauthorized.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and MoAdam, J., concur.

. Judgment reversed, and a new trial ordered, with costs to "appellant to abide event.  