
    Albertus Larrowe, App’lt, v. Herman J. Lewis et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed June 16, 1891.)
    
    Contract—Sale—Construction of.
    Plaintiff paid defendant for a large number of railroad ties, delivered under a contract which stated one price to be paid for all ties delivered, and now claims that the money was paid in advance and that he should not pay for “ seconds ” and is entitled to recover their price as an overpayment. Held, that while the finding that the word “counted” meant "inspected” it would not justify the conclusion that the plaintiff might accept both classes and pay for the second class their actual value, in the absence of any provision in the contract to that effect.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon report of referee, dismissing complaint
    
      E. A. Nash, for app’lt; J. F. Parkhurst, for resp’ts.
    
      
       Affirming 33 N. Y. State Rep., 769.
    
   Andrews, J.

It is conceded that the defendants were not paid any money in excess of that to which they were entitled for ties delivered and accepted by the plaintiff, reckoning them at the price fixed by the contract. The claim of the plaintiff is that the payments were made in advance, and that as part of the ties delivered were, upon inspection by the plaintiff’s inspector, classified as seconds, and were, in fact, seconds, that the plaintiff was not bound to pay therefor the price of first-class ties, and consequently that he is entitled to recover the deficiency as an over payment

The difficulty is, that by the contract one price was to be paid for all the ties the defendants should deliver. The finding that the word “counted” means “inspected,” might authorize the rejection of all but first-class ties, but it does not justify the conclusion that the plaintiff might accept both classes, and pay only for the second class their actual value, in the absence of any provision in the contract to that effect

The plaintiff requested a finding that this was the custom in contracts of this kind The evidence is contradictory upon the point, and the referee refused the request of the plaintiff to find the custom alleged, and to this refusal no exception was taken.

Upon the case as presented there appears to be no error in the record, and the judgment should, therefore, be affirmed.

All concur, except Finch, J., absent.  