Globe Soap Co. v. Liss

The action is for goods sold and delivered. The answer denies a sale, and as a defense alleges that the goods were left with the defendant to be sold by him for the plaintiff, and that any portion of the goods remaining unsold should be returned to plaintiff; that the defendant sold a portion of said goods for the sum of $21.70, which amount defendant there and then deposited in court “as a tender before trial.” On the trial the plaintiff put in evidence a writing signed by the defendant, ordering the goods in suit, stating the quantity and prices, with the significant recital, “Terms, thirty days from date of invoice, or 2 per cent, discount for cash in ten days,” and the following declaration: ‘The above order, with condition, terms, prices, etc., is correct in every particular; there being no agreements or understanding whatever other than those stated, and we hereby order the shipment to be made as above.” Across the bill is written the name, “H. H. Simmons, Salesman.” This writing is a valid contract for the sale and' delivery of the goods therein mentioned. Bonesteel v. Flack, 41 Barb. 435 ; Engelhorn v. Reitlinger, 122 N. Y. 76 , 25 N. E. 297 , 9 L. R. A. 548 ; Thomas v. Scutt, 127 N. Y. 133 , 27 N. E. 961 . Despite this fact, and against the plaintiff’s objection, the court allowed the defendant to testify that the goods in question were not sold to him, but were merely delivered to be sold for account of the plaintiff. Such evidence, in the absence of an allegation of fraud or the like, was clearly inadmissible, and the plaintiff’s exception to its admission presents reversible error.

Judgment reversed, and new trial ordered, with costs to appellant to abide event. All concur.