Moskwa v. Nassikas

• Decision Date: 04 May 1926
• Citation: 133 A. 821
• Parties: MOSKWA v. NASSIKAS et al.
• Court: New Hampshire Supreme Court

133 A. 821

MOSKWA

v. NASSIKAS et al.

Supreme Court of New Hampshire.

May 4, 1926.

Transferred from Municipal Court of Manchester; Perkins, Judge.

Assumpsit by W. Moskwa against Nicholas J. Nassikas and another. Verdict for plaintiff. Question whether verdict could be sustained on facts reserved, and case transferred. Question decided in the affirmative, and case discharged.

Assumpsit for milk sold and delivered. Trial by the court. Verdict for the plaintiff.

During October, November, and the first five days of December, 1924, the plaintiff delivered 154 cans of milk to the defendants, who are dealers in milk. The agreed price was 50 cents per can.

On December 2d a milk inspector took a sample of the plaintiff's milk at the defendants' plant, and upon the following day he took a second sample. Tests showed that both samples were adulterated with water. The defendants mixed the plaintiff's milk with other milk, and sold it in the usual course of business. They did not know that any part of it was adulterated, until the above tests were made. There was no evidence as to the number of cans delivered by the plaintiff upon December 2d and 3d.

Upon the foregoing facts the court found a verdict for the plaintiff for $77. "The question whether upon the foregoing facts the verdict for the plaintiff can be sustained" was reserved, and transferred from the municipal court of Manchester.

Timothy J. Howard, of Manchester, for plaintiff.

James A. Brederiek, of Manchester, for defendants.

PER CURIAM. There can be no recovery for the purchase price of goods which the vendor could not legally sell. Albertson v. Shenton, 98 A. 516, 78 N. H. 216; Dunbar v. Locke, 62 N. H. 442; Bliss v. Brainard, 41 N. H. 256; Lewis v....