#### John B. Doerr *et al.,*Respondents, *against*Emily P. Woolsey, Appellant.

(Decided June 3d, 1889.)

At the time of the delivery by plaintiffs to defendant’s coachman of a ' pair of horses in exchange for a pair previously received by defendant from plaintiffs, the coachman, by plaintiffs’ direction, told defendant that they would cost $200 more than the former pair; to which she replied that she would have to see her son; but this was not communicated to plaintiffs. Defendant retained and used the horses for more than a year, without objecting to the increased price. *Held,*that she was liable for that price..

Appeal from a judgment of the District Court in the City of New York for the Sixth Judicial District.

*285The facts are stated in the opinion.

P. *C.*Tolman, for appellant.

*R. C.*Schaider, for respondents.

Allen, J.

The justice lias found that .the defendant was informed that a pair of horses which were sent by the plaintiff's in exchange for those previously received from them, would cost the additional sum of $200. There is ample evidence in the case to support the finding. The defendant’s coachman, Donaldson, testified that by the direction of the plaintiffs’ salesman, Blodgett, he told the defendant at the time the horses were delivered that they would be $200 more if they suited. Blodgett swears that soon after the delivery he called upon the defendant with the bill, and asked for the $200. The defendant was not produced upon the trial of the case to contradict these statements of Donaldson and Blodgett;

On the argument some stress is laid upon the reply made by the defendant to Donaldson when told at the time of the' delivery of the bay horses that the plaintiffs wanted $200 more for them. Her reply was, as Donaldson testifies, that she would have to see Mr. Woolsey, as he did all of her business. It does not appear that this was ever communicated by Donaldson to the plaintiffs or their agents, or that they ever had any knowledge of it. No intimation was given to the plaintiffs at the time of the transaction, or at the time of presenting the bill, of any unwillingness to pay the extra price ; nor has the defendant ever notified the plaintiffs that she did not assent to the increased price. The transaction took place more than a year ago, and the defendant has retained and used the horses since that time.

The justice has applied the correct rule of law to the facts of the case. The acceptance and retention by the defendant of the horses after knowledge on her part of the price which •the owner asked for them, constituted a contract to pay that price by which she was bound. It was easy and would have been fair, if the defendant was unwilling to pay the price *286charged, to decline the horses at that price, or return them *(Dent*v. *North American Steamship Co.,*49 N. Y. 390; *Metropolitan Manuf. Co.*v. Dunning, 41 Hun 638; 2 N. Y. St. Rep. 711).

The judgment should be affirmed, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.

A motion for a reargument was made at the November General Term, 1889, on which the following opinion was rendered, December 2d, 1889.

J. F. Daly, J.

I have read the evidence in the case and the briefs, and it does not appear that the General Term overlooked anything in either. The original contract to supply defendant with a pair of horses upon the original terms was not lost sight of; for it was in view of that original con.tract and the subsequent assent to a modification as to price (assumed from the retention by defendant of the last pair of horses sent to her, with knowledge that $200 additional was demanded for them), that the General Term cited the cases of *Metropolitan Manuf. Co.*v. *Dunning*(41 Hun 638; 2 N. Y. St. Rep. 711), and *Dent*v. *North American Steamship Co.*(49 N. Y. 390).

The justice who rendered the judgment and the General Term of this court have held that the act of the defendant in retaining the horses, with express notice that their price was $200 above the original contract, was an assent to such price and an agreement to pay it. The plaintiffs were not bound to give notice to the defendant’s son because he had had charge of the negotiation. It was for the defendant, after receiving notice, to refuse - the horses, or to notify her son to negotiate concerning this additional demand if she desired to retain them. It was not until some time after she had received the horses with notice, and when a bill was pre*287sented for the additional price, that she referred plaintiffs to her son; and this did not avoid the effect of her retaining the horses. Besides, the son, when applied to by plaintiffs, refused to hear them.

The motion for a reargument should be denied, with $10 costs.

Larremore, Ch. J., and Van Hoesen, J., concurred.

Motion denied, with costs.