Ward v. O. F. Jonasson & Co. — 114 N.Y.S. 57

Majority

p. 57

WARD v. O. F. JONASSON & CO.

(Supreme Court, Appellate Term.

January 8, 1909.)

Headnote

1. Appeal and Erbob (§ 237^[1] )—Insufficiency op Evidence—Review.

Where the insufficiency of the evidence as to minor details, readily supplied, was not made the subject of a proper detailed motion for dismissal, the court on appeal must infer that the evidence was deemed sufficient by the parties.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 237.^[1] ]'

2. Sales (§ 359*)—Actions—Evidence.

In an action for goods delivered pursuant to a contract for their manufacture, evidence held to authorize a recovery.

[Ed. Note.—For other cases, see Sales, Dec. Dig. § 359.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by William T. Ward, assignee, against O. F. Jonasson & Co. From a judgment for plaintiff, rendered in the Municipal Court, defendants appeal. Affirmed.

p. 58

Argued before GILDERSLEEVE, P. J., and BISCHOFF and GUY, JJ,

William J. Leitch, for appellants.

James D. Merriman, for respondent.

The appellants’ criticism of the plaintiff’s prima facie case, upon the subject of the identity of the goods delivered with the contract of manufacture, might be deemed to have some possible merit, if the points now taken had been raised at the trial; but, as the record is presented, we must infer that as to minor details of proof, which might readily have been supplied if made the subject of a properly detailed motion for dismissal, the evidence was deemed by all parties to be sufficient. Agency in the person who gave the order to the representative of the plaintiff’s assignor was shown by prior dealings, with ratification; and the fact of a delivery in accordance with the contract to the designated consignee at the defendant’s order is supported by evidence which, if somewhat general in character, is rendered sufficient by the inference of acceptance to be drawn from the defendant’s payments upon account of the order, after delivery.

Judgment affirmed, with costs.