James v. Post — 40 A.D. 162

Majority

p. 162

John C. James, Appellant, v. John Post and Mary Post, Respondents.

Headnote

Pass book—not conclusive evidence that the sales mentioned therein were made only to the person named therein.

In an action against a husband and wife for goods sold and delivered, the fact-that the pass book, in which the sales of the goods were entered, bore only the-name of the wife, while it is evidence tending to show that credit was extended, to her alone, is not conclusive upon that point. *

Appeal by the plaintiff, John 0. James, from, a judgment of the-.County Court of Putnam county in favor of the defendants, entered in the office of the clerk of the county of Putnam on the 4th day of’ December, 1897, reversing a judgment in favor of the plaintiff: rendered by a justice of the peace.

Charles Haines, for the appellant.

Marvin R. Smith, for the respondents.

The suit was against husband and wife for goods sold and delivered. The plaintiff testified to delivering to “ defendants ” the articles sold. The narration of the testimony is meagre, as in most returns of justices of the peace, but by the use of the term “ defendants ” we understand the plaintiff to testify that he made the delivery to both of the defendants. The fact that the pass book bore the name of the defendant Mrs. Post, though evidence to show that the credit was extended to her alone, was not conclusive on the subject. There was a question of fact presented to the justice for his determination, and as there was some evidence to sustain his finding the County Court could not interfere with it or set it aside. In fact, we are at a loss to see any even plausible ground on which the judgment against the wife was wholly reversed. Interest before suit, however, was improperly allowed by the justice, as- the plaintiff showed neither a custom between the parties to pay interest nor any demand before action brought.

The judgment of the County Court should be reversed, and the judgment of the justice of the peace should be modified by striking therefrom the sum of two dollars and sixty-six cents, and as modified affirmed, with ten. dollars costs and disbursements to the appellant.

All concurred.

Judgment of the County Court reversed, and judgment of the justice of the peace modified by striking therefrom two dollars and sixty-six cents, and as modified affirmed, with ten dollars costs ánd disbursements to the appellant.