Ford v. Hebberd — 19 N.Y. St. Rep. 332

Majority

p. 332

Julia A. Ford, Resp’t, v. Southwick E. Hebberd, App’lt.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Conflict of evidence—What constitutes—Should be submitted to the jury.

In this action a recovery was had for the value of the plaintiff’s interest in a piano and a diamond ring. It was alleged and the evidence tended to establish the fact that the ring had been pawned and that the defendant agreed to and did redeem it and retained and used it with the consent of the plaintiff. The sum thus paid for the redemption of the ring entered into an oral agreement for the purchase by the plaintiff t.f a lot of land. A conveyance of this land, it was stated, was demanded from the defendant, and he failed to execute and deliver it. The evidence also tended to prove that a like agreement was made for the purchase of the piano by the defendant, and that he agreed to convey other property to the plaintiff for the piano and a mortgage. It was stated that this mortgage had been tendered to the defendant, and a sum of money which hau been paid by him to discharge a lien on the piano, and money for the redemption of the ring, and that the defendant refused to receive money or the mortgage, or to execute or deliver the deed. As to the fact that a tender was made, the plaintiff’s husband, who was a witness in her behalf, was supported in his statement by the evidence of a witness contradicting the evidence given upon that point by the defendant himself. Held, that this presented a conflict of evidence which should have been submitted to the jury.

2. Waiver—What objections may not be first taken at trial.

Held, that objections to the form and conditions of the mortgage could not be made by the defendant at the trial for the first time in order to defeat the action; that they should have been taken when it was offered to him.

Apjpeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.

George H. Starr, for app’lt; Edward Russell, for res’pt.

The recovery in this action was for the value of the plaintiff’s interest in a piano and diamond ring. It was alleged in support of the action, and the evidence of her husband, who was the principal witness in her behalf upon the trial,tended to establish the fact that this ring had been pawned for the sum of §100; and that the defendant agreed to redeem it, and also, that he did so and retained and used it with the consent of the plaintiff. The sum which the defendant paid to redeem the ring it is stated afterwards, entered into an oral agreement for the purchase by the plaintiff of a lot of land of the value of about $200. A conveyance of this lot of land it is stated was demanded from the defendant, and he failed to execute or deliver it.

The evidence also tended to prove that a like agreement in form was made for the purchase of the piano by the defendant, and that he agreed to convey other property, including four lots and a house, to the plaintiff for the piano, and a mortgage securing the sum of $1,200. It was stated by the witness that this mortgage had been tendered

p. 333

to the defendant, and also the sum of thirty-five dollars paid by him for a debt which was a hen upon the piano, and $121 to redeem the ring, and that the defendant refused to receive the money or the mortgage, or to execute or deliver the deed. These statements, upon which the right of the plaintiff to maintain the action depended, were positively denied by him, and because of that denial it has been urged, in support of the appeal, that there was no such evidence before the jury as authorized them to find a verdict in the plaintiff’s favor.

But as to the fact that a tender was made the plaintiff’s husband was supported in his statement by the evidence' given by the witness Lloyd, who testified that he was present, and that a tender was made to the defendant of the amount, which he understood to be about $125. The testimony of this witness supported the plaintiff’s witness in a material part of the case, and contradicted the evidence as to that fact given by the defendant himself. And under the case of Sherwood v. Hauser ( 94 N. Y., 626 ) a controversy was thereby presented which it was the duty of the court to submit for solution to the decision of the jury. No different rule was enunciated in the case of Syms v. Vyse (2 N. Y. State Rep., 106), for there the witness was without corroboration. And such was also the case in Raines v. Totman ( 64 How., 493 ). And Cranston v. N. Y. Central, etc., R. R. Co. ( 103 N. Y., 614 ; 4 N. Y. State Rep., 300) is inapplicable, for it was decided wholly upon an erroneous direction given to the jury.

The evidence concerning the value of the ring, and also of the piano, which was also directly in conflict, sufficiently supported the view adopted by the jury, to sustain their verdict. If the defendant intended to refuse the mortgage which was offered to him because of any objection to its form or condition, he should have pointed that out at the time to the plaintiff, when the objection, if there was any ground for it, could have been speedily removed. The law did not permit him to omit making that objection, and then bring it up on the trial as a reason for defeating the action.

The case was manifestly one for the jury, and the judgment and order should be affirmed.

Brady and Bartlett, JJ., concur.