
    Robert D. Kellogg, Resp’t, v. James J. Barrett, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Sale—Discount.
    Certain goods were sold to defendant on sixty days time with graduated discounts if paid before that time. A large portion of such goods were returned. In an action for the purchase price, Held, that the meaning of the contract was that in case the bill was settled in full for cash before the time expired there should be a deduction from the list price, otherwise the full price would be asked, and that defendant was not entitled to the discount on the goods returned.
    Appeal from a judgment entered in Monroe county on the report of a referee.
    
      J. M. Hastings, for app’lt; Frank H. Baker, for resp’t.
   Macomber, J.

The recpvery was upon a check drawn by the defendant to the plaintiff’s order for thirty dollars, and upon balances of account due from the defendant, in the one case to James H. Phelan and in the other to Jeremiah Phelan, both assigned to the plaintiff, amdunting in all, with interest, to $60.25. The indebtedness upon the check is not controverted. It is urged, however, upon this appeal, as well as at the trial, that on the James H. Phelan account there should have been deducted the difference between the $60 and the thirty day prices, which was two per cent, amounting to $5.11, leaving a balance unpaid of $10.19 instead of $15.30 ; and a deduction of $13.69, or four per cent, for like reasons, in the balance of the Jeremiah Phelan account. The evidence, which fully supports the conclusions of the referee, is that goods were sold on a credit of sixty days, with a graduated discount if paid before the expiration of credit. There were no cash payments, save twenty-five _ dollars on the Jeremiah Phelan bill; but most of the merchandise was returned by the buyer to the sellers and credited as cash on the account The case shows that the discount was to be allowed only in case the whole bill was paid before expiration of the sixty days. I do not see but that if the contention of the appellant’s counsel is correct, the defendant, by returning nearly all the goods and having them credited on the account at the invoice price and still claiming the discount for purposes of payment, would get for nothing that part of the property not returned. But the meaning of the contract was, that in case the purchaser paid and settled the bill in full for cash before the term of credit expired, there should be a deduction from the list prices; otherwise the full price asked should be paid.

ffhe judgment should be affirmed.

Dwight, P. J., and Corlett, J., concur.  