McCreery v. Duncan — 1 N.Y. St. Rep. 255

Majority

p. 255

McCreery and another v. Duncan.

(New York Superior Court,

General Term,

Filed June 1, 1886.)

Headnote

1. Contract—Agreement—Pleading—Complaint—Sufficiency of averment.

Plaintiff suel on the following agreement of defendant: “I will become responsible for $350 of Mi-s L. bill of costumes, provided that you deliver to her, on receipt of this letter, the full bill of goods.” The complaint averred “that the plaintiff thereupon, on receipt of said promise of defendant, etc., sold and deliverel to L. certain goods, etc., of the value, etc.” Seld, a sufficient averment if there was a reasonable intendment that the delivery was of all the goods sold. There is such an ntendmeat. An assertion that on an occasion certain goods were sold, implies that that fully describes all the goods that were sold, unless limited by something preceding.

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3. Evidence—Competency.

Plaintiff could give in evidence the conversation of L. in absence of defendant. That communication was part of the contract of sale and delivery referred to in the agreement. It was competent to prove at what plac. L. vet bally directed that the goods be delivered. A delivery there-would be a delivery to her.

3. Same.

A witness can give in evidence a part of the contents of books that he kept without producing the books, no objection being made on that ground.

Appeal by defendant from judgment entered upon verdict for plaintiff, as directed by the court, upon order denying motion for new trial made upon the minutes.

Edward E. O’Dwyer, for appellant.

Theodore F. Lozier, for respondent.

The action was upon the following instrument made by the defendant:

“New York, October 18, 1883.

“ Messrs. McOreery & Go.: Gentlemen—I will become-responsible for $350 of Miss Flora Livingston’s bill of costumes, provided that you deliver to her, on receipt of this-letter, the full bill of goods.

“ Respectfully yours,

“WM. F. DUNCAN.”

On the trial it was assumed that the full bill of goods mentioned in the instrument referred to costumes and other goods, which were to be sold at one time by the plaintiffs to Miss Livingston.

The merits of the case appear to be with the plaintiffs, but certain legal questions made by defendant are to be considered.

There was no legal objection to the plaintiffs giving in evidence the conversation of Miss Livingston in the absence of the defendants. That communication was part of the contract of sale and delivery, which was referred to in the. instrument on which the action was brought. .And it was competent to prove at what place Miss Livingston verbally directed that the goods should be delivered. A delivery in pursuance of that direction would be a delivery to her.

There was no legal objection to the witness Paul giving a part of the contents of books that he kept for the-plaintiffs without producing the books. The defendant made no objection on that ground. That witness also-knew the correctness of the amount of money credited to-

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Miss Livingston as entered in the book. He did not remember the dates, but he kept the book and himself made the-entries. Indeed the only question on this subject objected to by defendant’s counsel, called only for the witness’ memory of the actual facts.

The defendant’s counsel objected that there was no proof of the delivery to Miss Livingston of the goods sold to her. The circumstantial evidence, and as a part of it, Miss Livingston’s conduct and payments were so significant that it would have been incorrect to take this question from the jury, and the defendant did not ask to go to the jury on. this part of the issue.

It was further objected that the testimony incontrovertibly showed that Miss Livingston had paid $535 of the bill,, charging for costumes $530, and that therefor the defendant could not be made hable more than $15. The evidence-seems to have been made contrary to this. The various-articles sold were ordered on different dates, the costumes being ordered last of all. Miss Livingston did not apply the money she paid to any particular portions of the indebtedness, which left the plaintiffs at liberty to make the application, which presumptively was not much to destroy the benefit they held in defendant’s promise.

The defendant’s counsel objected that defendant’s mind had not met the minds of plaintiffs on the point of whether his obligation was to be responsible that Miss Livingston should pay up on her bill, $350, or to pay a balance of that amount, she having paid the rest. It is not objected that the law puts the latter construction upon the defendant’s agreement. He made no mistake as to the actual words of the agreement. He delivered it to the plaintiffs, who, on the faith of the true construction, parted with their property. He is therefore liable according to its true construction.

A motion was made to set aside the verdict as excessive. This was placed upon the claim that the amount of the bill at the time the writing was signed was but $743, and that $535 having been paid on account, only $208 was due. This ground is not made good by the testimony, for by it. the amount beyond $743 was for the only costume ordered, and the defendant was responsible only for what might be due for costumes.

The remaining exception to be noticed is to the refusal to direct judgment for the defendant on the complaint, the motion being made before any testimony was given. The Wlfl.im was that the complaint did not show any cause of action. It was said to be defective in not setting out the : performance of the condition on which, according to the ’instrument, the defendant was to be responsible. The con

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■dition in the writing was “provided that you deliver to her -on receipt of this letter the full bill of goods.” The complaint averred “that the plaintiff thereupon, on receipt of said promise of the defendant, etc., sold and delivered to said Flora Livingston certain goods, etc., of the value, etc.” This would be sufficient, if there is a reasonable intendment in the complaint, that the delivery was of all the goods ■ sold. There is such an intendment, an assertion that on an occasion certain goods were sold, implies that that fully describes all the goods that were sold, when nothing prs■ceding the assertion indicates a purpose of limiting the • assertion to part of the goods.

The judgment and order appealed from should be affirmed, with costs.