Griesheimer v. Tanenbaum — 28 N.Y. St. Rep. 653

Majority

p. 653

Louis Griesheimer, as Assignee, App’lt, v. Moses Tanenbaum et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Bale—Payment—Evidence.

Where in an action for goods sold defendants by R. & Co., the defense was that the goods were to be paid for by applying their price upon a debt to defendants by the firm of R., K. & Co., R. being a member of both firms, Meld, that it was not error to allow defendants to show that they had performed their part of the contract and had given credit on their books to the firm of R., K. & Co. for the price of the goods sold by R. & Co.; and that this was so although thereby entries in books of defendants, made without plaintiff’s knowledge, were admitted in evidence against them.

Appeal from judgment in favor of defendants, entered on verdict of a jury.

Baines Bros., for app’lts; Theodore Bacon, for resp’ts.

The action was brought by the plaintiff as assignee for the benefit of creditors of “ J. W. Rosenthal & Go.” to recover from the defendants goods sold the defendants.

The purchase of the goods was admitted, and the only issue presented to the jury was the simple one, whether upon the purchase it was agreed that the goods should be paid for in cash, or by applying their price upon an account of §3,500, and upwards, owing the defendants by “ Rosenthal, Kerngood & Company,” of Baltimore, a firm composed of said J. W. Rosenthal and one Kerngood.

The defendants gave evidence on the trial tending to show that it was agreed by Rosenthal, at the time the purchase was made, that the goods so bought should be accepted as an offset upon the indebtedness of the Baltimore concern to the defendants. This arrangement was testified to by Albert 1ST. David, one of the defend.ants. Subsequently Moses Tanenbaum, another of the defendants, was called as a witness for the defense, and shown the ledger in use by the defendants at the time of this transaction, and his attention was called to the account of “ Rosenthal, Kerngood &

p. 654

Co.,” as it appeared in the ledger, and particularly to a credit given that firm of $2,226.50, being the amount of the purchase price of the goods bought from “J. W. Eosenthal & Co.,” the plaintiff’s assignors. The witness testified in reference thereto that all the entries were made by a bookkeeper employed by them, but under the instructions of the witness who saw the bookkeeper make the entry.

The entry was then offered and read in evidence over the objections of the plaintiff’s counsel. It further appeared that this entry was posted into the ledger from a lead pencil memorandum book which was then produced on the trial.

The jury returned a verdict for the defendants, and on the hearing of this appeal from the judgment entered on the verdict, the plaintiffs’ counsel insists that the trial court erred in admitting in evidence the entries from the ledger crediting “ Eosenthal, Kerngood & Co.” with the amount of the purchase from “J. W. Eosenthal & Co.”

It is argued by the plaintiff’s counsel that the entry was not competent or material evidence for the reason that the ledger was not the book of original entry, and that the entry on the original book of entry was but a statement made by the defendants, at. another time, that the goods were received as an offset to the Baltimore account, and simply the defendants’ version of the transaction in another form.

If the only force and effect of the ledger entry were to corroborate the witness David as to what the terms of sale were, then the entry would have been in our opinion incompetent evidence of the fact. But it seems to us that the evidence was competent and material for another purpose. The defendants insisted on the trial that the goods were purchased for the purpose of in part paying the indebtedness of “ Eosenthal, Kerngood & Co.” to them; and that it was agreed to offset the amount of the purchase against that account. Assuming that was the agreement, it seems-to us competent and material for the defendants to show that they did as they had agreed, and in fact did offset the purchase-price by crediting “ Eosenthal, Kerngood & Co.” and for that purpose were entitled to read in evidence the entry or entries by which that offset was made. The evidence was competent to show a fulfilment of the contract, and does not become incompetent because it may in part show the terms of the agreement.

We, therefore, are of the opinion that the evidence was competent to show that the defendants have performed their part of the transaction, and the court did not err in admitting the evidence complained of.

The judgment should be affirmed, with costs.

Dwight and Macomber, JJ., concur.