
    Joseph Bier and Morris Bier, Respondents, v. Winfield S. Bash, Appellant.
    
      Action for money had and received — it lies to recover money paid for merchandise of which a quality, inferior to that contracted for, has been delivered.
    
    A person who purchases and pays for a quantity of flour of a specified quality may, if flour of that quality is not delivered to him, "maintain an action against the vendor for money had and received, or, if he so elects, maintain an action against the vendor to recover the damages which he sustained because of the breach of the contract.
    The fact that the vendor delivered to the vendee a different and inferior quality of flour, which the vendee refused to accept, but which the vendor refused to take back, although requested so to do by the vendee, will not prevent the vendee from maintaining an action for money had and received, even though the complaint in such action alleges that the vendee paid the money sought to be recovered, upon the promise of the vendor to deliver flour of a certain quality, that the vendor had failed to deliver such flour and that the vendee had demanded either the flour or the money, which demand had been refused, and did not allege the vendor’s tender of and the vendee’s refusal to accept a different quality of flour.
    O’Brien, P. J., and Hatch,'J., dissented.
    Appeal by the defendant, Winfield S. Bash, from a judgment of the Supreme Court in favor of the plaintiffs, entered in-the office of the clerk of the county of Hew York on the 5th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Clarence L. Barber, for the appellant. ..
    
      J. B. Engel, for the respondents.
   Ingraham, J.:

The cause of action set forth in the complaint is based upon an allegation that on the 2d day of August, 1904, the defendant had and received from the plaintiffs the sum of $1,607.14 belonging to the plaintiffs for which the defendant promised and agreed to deliver to the plaintiffs on August 2, 1904,-500 140-pound sacks, or 357¿ barrels, of Venus flour; that the plaintiffs paid said money to the defendant on the express promise and agreement of the defendant that he would, after said payment had been made to him, and on the 2d of August, 1904, deliver to the plaintiffs the flour above mentioned; that the plaintiffs have demanded that the defendant deliver to them the flour aforesaid, but that the defendant has refused and continues to refuse to deliver said flour to the plaintiffs; that the plaintiffs have demanded of the defendant the return of said sum of $1,607.14, but the defendant has refused and continues to refuse to pay said sum to the plaintiffs.

The answer is a general dénial. Upon the trial one óf the plaintiffs testified that in March, 1904, one Van Tassell, a salesman for the defendant, offered to sell the plaintiffs flour at “ $4.50 in jutes, but you will have to pay the money in advance before yon get your flour.” In response to which the plaintiff Joseph Bier gave to Van Tassell an order for 500 sacks of Venus flour ; that subsequently Van Tassell came and told the plaintiffs that the flour was on the railroad, when the plaintiffs gave the defendant a check for the amount; that the plaintiffs then received a receipt for this money which was in form a bill for 500 sacks of Venus flour at four dollars and fifty cents per barrel. Upon this was marked the number of two cars, with a statement “Frt. & all charges prepaid to Aug. 1 /04. Bills of lading surrendered,” and is marked paid, August second, signed by W. S..Bash. One of the plaintiffs testified that he received a notice from the railroad of the receipt of 500 sacks of, flour and gave the order to his truckman ; that his truckman went over to the depot and brought back 500 sacks of flour, and after the flour had arrived, upon examination he found that instead of it being “Venus” flour it was “XX” flour which was an inferior quality. The defendant objected to evidence as to the quality of the flour delivered upon the ground that the action was brought for money had and received and that this evidence was not within the issues, which objection was overruled and the defendant excepted. Over similar objections and exceptions the plaintiff was allowed to prove that after this flour was received he went to the office of the defendant and saw the defendant who said that there must be a mistake, and after requesting the plaintiff to bring him a sample of the flour received, which he did, the defendant said : “ I don’t know what it is. You have got the flour and I have got the money and I can’t do nothing for you.” To which the plaintiff replied, “ How you take your flour and I demand my money,” whereupon the defendant said, “ Don’t you send me no flour back; if you send it to me, yon will get it back again,” to which the plaintiff said, “ I will hold this flour subject to your order, Hi1. Bash.” After this evidence was taken the defendant moved to strike it out upon the ground that there' was no allegation in the complaint that they returned or offered to return any flour, and that the defendant had not come prepared to meet any such issue, and that it was incompetent, immaterial and irrelevant and not addressed to any issue made by the pleadings in the action, which motion was denied and the defendant excepted.

At the end of the plaintiffs’ case the defendant moved to dismiss the complaint upon the ground that the plaintiffs had not proved the case as alleged in the complaint. This motion was denied and the defendant excepted, a-nd this presents the only question in this case. The action, is in form -for money had and received based upon an allegation that the plaintiffs paid the money sought to be recovered upon a promise of the defendant to deliver 500 sacks of a certain quality of flour, and that the defendant has failed to deliver the flour which he agreed to deliver, and that the plaintiff demanded of the defendant either the flour or the money, which demand was refused. These facts were proved. It also appeared that certain other flour was delivered as a compliance with the contract which, when delivered, the plaintiff refused to accept as a compliance with the contract, tendered it back and demanded the flour that he had purchased. While undoubtedly the plaintiffs would have a cause of action for a breach of contract and to recover the damages sustained thereby, I think they have a cause of action to recover back the money they paid the defendant upon á sale of the flour, with a statement by the defendant that the flour had been shipped to them when in fact the flour they had purchased had not been , shipped, and the plaintiffs had not accepted the flour actually shipped as a compliance with the contract. The plaintiffs were entitled to receive the flour they had purchased, and in default of that they were entitled to recover the money they had paid based upon the -representations of the defendant that the flour they had purchased had been shipped. There1 is ho question but that the plaintiffs, as soon as they ascertained that the flour that had been shipped was not the flour that the defendant had sold, refused to accept it and tendered it back and upon those facts being established, the plaintiffs were entitled to recover back the money they had paid. The fact that defendant had delivered flour that did not comply with his contract the acceptance of which was refused was not at all material.It was not a compliance with the contract. The title to it never passed to the plaintiffs, and consequently could have no effect upon the plaintiffs’ rigjht to recover back the money: I think the cause of action as alleged was proved and upon-tlie facts found by the jury the plaintiffs were entitled to recover.

It follows that the judgment appealed from must be affirmed, with costs.

Patterson and McLaughlin, JJ., concurred; O’Brien, P. J., and Hatch, J., dissented.

Judgment and order affirmed, with costs.  