
    Louis Lang, Resp’t, v. Matthias J. Severance, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1889.)
    
    Sale—Acceptance of goods—Offf.r to return, when too late.
    On the 14th of December, 1886, plaintiff sold and delivered to defend-* ant a quantity of whiskey under an agreement that the latter should give away a gallon to his friends to introduce it, pay for what he sold and return the rest. Defendant made no offer to return what remained unsold until February, ItitiS. held, that the question of reasonable diligence was one for the determination of the referee and his finding that there was an acceptance would not be disturbed.
    Appeal by the defendant from a judgment entered upon the report of a referee, in favor of the plaintiff.
    
      M. J. Severance, Jr.r for app’lt; N. B, Spalding (George H. Stevens, of counsel), for resp’t.
   Ingalls, J.

This action was brought by the plaintiff to recover for a quantity of whiskey sold to the defendant; and defended by the latter upon the ground substantially that the same was purchased upon condition, viz. : That defendant was to receive the whiskey, give away a half gallon to his customers to enable them to test the same, with the view to introduce it upon the market, and the defendant was to pay for whatever quantity he sold, and to return to the plaintiff the residue. It appears that the whiskey was received by the defendant on the 14th day of December, 1886. And'after distributing the half gallon, he sold eight and one-half gallons, leaving unsold and in his possession at the time of the commencement of the action fifteen gallons. The referee has found the following facts and conclusions of law:

First. That on the 14$, day of December, 1886, the plaintiff sold and delivered to the defendant twenty-three and one-half gallons of malt whiskey at $2.50 per gallon, one barrel containing said whiskey of the value of, $1.50 cartage paid for the same, making a total value of $60.75.

Second. That the contract under which goods were sold was that the defendant was to be allowed to give a half gallon or a gallon of the whiskey to his friends for the purpose of introducing it, and if he could not sell it he was to pay for what lie sold and return the balance to the plaintiff.

Third. That on the 14th day of April, 1887, the plaintiff notified the defendant that he, the plaintiff, had drawn by sight draft for the amount of the claim, $60.75.

Fourth. That Matthias J. Severance, Jr., a son of the defendant, under the direction of the defendant, wrote and mailed, on the day the defendant received the notice of draft, a letter to the plaintiff, in which he stated that four or five gallons of the whiskey had been used; that he would return the balance of the whiskey and send a check for the amount used.

Fifth. That said letter was never received by the plaintiff, and that the defendant did not return the balance of the whiskey, nor did he send a check for the amount used.

Sixth. That after the writing of the letter by Matthias J. Severance, Jr., and within a few days after the defendant received the notice of draft, Frank Severance, a son of the defendant, wrote and mailed a letter to the plaintiff in the name of the defendant, in which he stated there had been two or three gallons of the whiskey used; that he would send a check in the month of May following for part of the claim and the balance later.

Seventh. That said Frank Severance had, at other times, written, business letters for the defendant

Eighth. That the next day after the writing and mailing of this letter the said Frank Severance communicated to the defendant the fact of his writing and mailing this letter, and its contents.

Ninth. That the defendant never notified the plaintiff that this letter was not written by the defendant or that he, the defendant, would not be bound by its contents.

Tenth. That the letter written by Frank Severance was received by the plaintiff.

Eleventh. That the defendant did not notify the plaintiff, or his agents, that he, the defendant, desired to return the whiskey tmlil February, 1888, after suit was threatened.

Twelfth. That the defendant has sold eight and one-half gallons of the whiskey.

Thirteenth. That the defendant had in his possession unsold at the time of the commencement of this action fifteen gallons of said whiskey.

Fourteenth. That the defendant offered to return the said fifteen gallons of the said whiskey in his possession and unsold, before the commencement of this action.

Fifteenth. That the defendant has not sold or used any of said whiskey since said offer to return the same was made in February, 1888.

Sixteenth. That the defendant has not returned the said whiskey and that his offer to return the same made in February, 1888, was not made within a reasonable time.

As conclusions of law:

First. That the defendant has accepted the said whiskey.

Second. That the plaintiff is entitled to recover of the defendant on account of said whiskey sold and delivered, the sum of $60.75, with interest thereon from the 14th day of April, 1887.

We think the findings of the referee are sustained by the evidence. By the terms of the contract of sale the defendant had an option to take the whiskey, and after giving away the half gallon, to sell the residue if he could, and if unsuccessful to return whatever remained unsold. Such option was to be exercised by the defendant within a reasonable time. The evidence shows that the -whiskey was delivered to the defendant December 14, 1886, and the offer to return what remained unsold was made in February, 1888. Whether the defendant exercised reasonable diligence in availing himself of such option became a question of fact for the determination of the referee, and he has found that question adversely to the defendant upon evidence which we think justified his conclusion, under all the facts and circumstances of the case. Crandall v. Haskins, 10 N. Y. State Rep., 107; Johnston v. Trask, 40 Hun, 415, 417.

We have examined the exceptions taken by the defendant’s counsel upon the trial, and discover no error committed by the referee prejudicial to the defendant’s case.

The judgment must be affirmed, with costs.

Learned, P. J., and Landon, J., concur.  