Wallace v. Blake — 30 N.Y. St. Rep. 248

Majority

p. 248

William Wallace et al., Resp’ts, v. Frederick D. Blake et al., App’lts.

(New York Superior Court,

General Term,

Filed March 4, 1890.)

Headnote

1. Sale—Evidence.

In an action for goods sold, evidence that such sale was changed to a consignment is not admissible under a general denial. Such defense is an affirmative one, and should he pleaded.

2. Same—Pleading.

Nor is such evidence admissible under an allegation in the answer that prior to the dates of the alleged sales plaintiffs had shipped to defendants-certain goods which were not such as was agreed to he sold, and that it was-agreed that such goods should be considered consignments to be sold for account of plaintiffs, as such allegation referred to other and different goods.

Appeal from, a judgment entered in favor of the plaintiffs on-a verdict which was ordered by the court; and from an order-denying a motion for a new trial.

The action was brought to recover for goods sold and delivered..

Williahn C. Beecher and C. Bainbridge Smith, for app’lts; Nor-wood & Coggeshall, for resp’ts.

The case shows that the plaintiffs sold and delivered to the defendants certain goods at an agreed price, but the defendants attempted to show that after the sale and delivery it. was agreed between them and the plaintiffs that the contract of sale and delivery should be changed to one of consignment, and their exception to the refusal of the court to allow them to show this consignment presents the only point on which they ask this court to reverse the judgment, or, in the words of the counsel for the defendants, which are to be found on page 2 of his brief, “the main question in controversy in this case is, whether the-goods so delivered to the defendants were purchased by them or whether they were to be sold by the defendants for and on account of the plaintiffs? ”

The court refused to allow the defendants to show that the contract of sale had been changed to one of consignment, on the ground that such a defense had not been pleaded.

It was alleged in the complaint that on the 3d, 10th, 17th, 24th and 31st days of March the plaintiffs sold and delivered to the defendants certain goods.

The answer sets up as a defense, and by way of counterclaim, that prior to the dates of the alleged transactions set forth in the said complaint, the plaintiffs had shipped to the defendants divers

p. 249

merchandize consisting of yarn which they had intended to sell to defendants, and which the defendants intended to purchase from them; but after the receipt of the said yarn it was discovered, as was a fact, that some was not such yarn as the plaintiffs had agreed to sell to the defendants, and thereafter it was agreed between the plaintiffs and defendants that said yarn should not pass to the defendants as a sale thereof to them from the plaintiffs, but that same should be considered and thereupon become consignments of yarn to the defendants from the plaintiffs, to be sold for the account of the plaintiffs by the defendants.

This is not an allegation that it was agreed between the plaintiffs and defendants that the goods sold and delivered to defendants in March should be treated as goods consigned by the plaintiffs to defendants, and did not warrant the admission of the evidence that was ruled out by the court as above stated ; it referred to other and to different yarn. In fact, the defendant, Blake, said that the complaints referred to were not of the March shipments, but of the same number, they were ■ not complaints of that particular yarn in the custom house which was then intact and in bulk. Nor was the defense that the defendants sought to prove on the trial admissible under the general denial. It was an affirmative defense and related to something that had taken place after plaintiffs’ cause of action had accrued, and should have been pleaded.

The evidence excluded did not tend to controvert the material affirmative allegation of the complaint, which was the allegation of sale and delivery. The ruling was in harmony with the decisions of the court of appeals in the cases cited by counsel for the defendants.

In the case of Hier v. Grant, 47 N. Y., 278 , which was also an action for goods sold and delivered, the defendants were allowed under a general denial to show that they had not purchased the goods by showing that the person who purchased the goods was not at the time of the purchase the agent of the defendants. In that action it was claimed by the plaintiff that the goods were purchased by a person who was acting as agent of the defendants.

In the case of Schwarz v. Oppold, 74 N. Y., 307 , the defendants were allowed to show that they had not made the note in suit, by showing that the words “ with interest ” had been added to the note after it was signed by them.

This is not an affirmative defense like the one which the defendants sought to prove on the trial of this action.

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Oh. J., and Dugro, J., concur.