Sherwin-Williams Co. v. Dedrick — 56 N.Y.S. 657

Majority

p. 657

SHERWIN-WILLIAMS CO. v. DEDRICK.

(Supreme Court, Appellate Division, Third Department.

March 14, 1899.)

Headnote

Sale and Delivery—Evidence—Sufficiency.

Plaintiff, on order of defendant, shipped to him seven boxes of earth paint, directed to him at his home, via a carrier, which delivered them to a teamster to whom defendant had directed it to deliver his freight. Plaintiff mailed a statement of the account therefor to defendant, with a return notice on the envelope, but it was not returned. Defendant sat silent in court while these facts were proved. Held, that there was evidence to sustain a finding of a sale and delivery.

Appeal from Saratoga county court.

Action by the Sherwin-Williams Company against Levi B. Dedrick. There was a judgment for defendant, and plaintiff appeals.

Reversed.

The plaintiff is a business corporation incorporated under the laws of the state of Ohio, and doing business there, but having an office in the city of New

p. 658

York. It commenced an action in the justice’s court of Saratoga county against the defendant upon a complaint for goods sold and delivered to the amount of $31.30. The defendant interposed a verified answer. The case came on for trial before the justice, and at the close of plaintiff’s evidence (none being offered in behalf of the defendant) the justice rendered judgment for the plaintiff. The defendant appealed therefrom to the county court of Saratoga county. That court reversed the judgment of the justice, and from that judgment of the county court the plaintiff has appealed to this 'court.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Davison & Phillips (Charles M. Davison, of counsel), for appellant.

S. M. Richards (C. H. Sturges, of counsel), for respondent.

This case is almost entirely a question of fact. The defendant offered no evidence upon the trial. The plaintiff’s evidence, therefore, must be assumed to be true; and, if there was any evidence upon which the justice might find the sale and delivery of the goods to the defendant, then his judgment should be sustained. It appears from the evidence that the defendant had, prior to the transactions in question, purchased goods of the plaintiff at different times, amounting in value to some hundreds of dollars, and had paid for the same. Upon the trial there was offered and received in evidence, without objection, an order purporting to have been given by the defendant to the plaintiff’s agent in New York to ship certain merchandise to the defendant. It appears that pursuant to that order the plaintiff shipped such merchandise in seven boxes, each marked as follows: “Levi B. Dedrick, Corinth, N. Y., via Citizens’ Line and D. & H. R, R.” The defendant lives at Corinth, Saratoga county, N. Y. It appears that these goods were shipped from New York and delivered to the Citizens’ Line of Steamboats, and its receipt is in evidence for seven packages of -earth paint. The station agent at Corinth testifies that he received seven cases marked “E Paint,” addressed to Levi B. Dedrick, according to the markings, and that he delivered them to a teamster to whom the defendant had directed him to deliver his freight. There was evidence, also, to the effect that the plaintiff had mailed to the defendant a statement of the account for such merchandise and the prices, and that on the envelope was a notice reading as follows: “The Sherwin-Williams Co., 397 Washington Street, New York. Return in 5 days,”—and that the same has never been returned to the plaintiff as undelivered matter. The defendant was present in court when this testimony was given, and remained silent.

Without entering into any discussion as to this evidence, and recognizing the fact that there are elements of weakness in the case, still we think it constitutes some evidence to sustain the finding of the justice, and that, therefore, the judgment of the county court should be reversed, and that of the justice affirmed, with costs in this court and in the court below.