Cobb v. Wells — 34 N.Y. St. Rep. 968

Majority

p. 968

Nathan Cobb et al., Resp’ts, v. Luke Wells, App’lt.^[1]

(Court of Appeals, Second Division,

Filed January 14, 1891.)

Headnote

1. Sale—Evidence.

Plaintiffs brought this action for materials furnished upon the following order: “Messrs. Cobb & Herrick—Please let the bearer, Mr. Howe,have what materials, including patterns, he may want from your shop for one hundred pumps, and I will pay same within sixty days from receipt of goods, and oblige Luke Wells.” Upon the trial defendant offered to prove the cost per pump, including materials furnished; also, that the amount of the account in question exceeded by several hundred dollars the cost of one hundred pumps ready for the market, but the evidence was excluded. Held, error.

3. Same.

It was competent for the defendant, if he could, to prove that the aggregate expense of the construction of the pumps, not exceeding the prescribed number for which such materials and work were supplied and done, was less than the amount of the plaintiff's alleged claim founded upon such account.

- Appeal from judgment of the general term of the supreme court, fourth judicial department, affirming judgment entered on report of a referee in favor of the plaintiffs.

p. 969

The action was brought to recover for materials and patterns alleged to have been furnished by Cobb, Herrick & Co. to one Howe upon an order made by the defendant in the following form:

“ Messrs. Cobb & Herrick:

“ Gents : Please let the bearer, Mr. Howe, have what materials, including patterns, he may want from your shop for one hundred pumps, and I will pay same within sixty days from receipt of goods, and oblige,

“Luke Wells.”

The business of the firm of Cobb, Herrick & Co. was manufacturing machinery, including foundry and pattern work, and the plaintiffs were assignees of the claim in question. The claim as alleged was upwards of one thousand dollars. The referee directed judgment for the amount of the claim with interest, less some payments found to have been made upon it by Howe.

Edward H. Burdick, for app’lt; W. /S. Andrews, for resp’ts.

The liability of the defendant for the articles furnished to Howe arises upon and is limited by his order. The limitation by the terms of the order does not relate to the character or condition of the materials, but to such as Howe might want for one hundred pumps. The firm of Cobb, Herrick & Co. had a machine shop and the facilities for making and preparing' the materials for use, and the service requisite to their adaptation for use in the construction of the pumps fairly came within the import of the order. The main features of the account were for pattern work, machine work, castings and wood work. There was also a small amount for other materials.

If the preparation and furnishing the patterns and materials called for by Howe under the defendant’s order for pumps not exceeding 100 were correctly and fairly represented by the account of Cobb, Herrick & Co., as found by the referee, the defendant was chargeable with the amount of it. There is evidence tending to prove that this account was for patterns and materials prepared and furnished to Howe pursuant to his call for them; that they were provided wholly for the construction of pumps after the order was made and during a period ending with January 14, 1878; and that the pumps made by him during that time did not exceed 100 in number. Whether the defendant’s order was operative during that period, and whether the patterns and materials charged in such account were or could have been prepared and furnished for or used in the construction of that number of pumps, were facts controverted by the evidence on the part of the defendant to the effect that the order was not made until a year after the time it purported to bear date and that the materials so charged and allowed by the referee were largely in excess of those requisite to or used in the construction of 100 pumps. There was, however, evidence tending to support the finding of the referee and the comparative weight of it is not here for consideration. The account of materials and of the work of preparing

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them, and the patterns was, as were «other accounts, entered and kept in books of Oobb, Herrick & Co., and for details of the account in question reference was made to such entries by the evidence. The books were received in evidence subject to the exception of the defendant. There were weight books and time books, so called, and another to which the entries on those books were taken. To prepare the way for the introduction of these books, it was proved that the bookkeeper daily weighed the iron and took an account of the work and made the entries in' the books and in respect to the correctness of the items so taken by him and as to whose accounts they were applicable, the evidence of the foreman having charge of the work and employes in the shops were given as well as that of some of the members of the firm by way of verification of the charges as so entered, and further evidence of persons who had made settlements with the firm of their accounts upon the books was given bearing upon the character or correctness of the accounts kept upon them.

The firm had in their service a large number of workmen, and it was the duty of the bookkeeper, aided by the foreman, to ascertain what the work was and for whom it was done, and make entries of it daily in the boobs. The method by which the evidence tended to prove this was accomplished was such as to render competent as evidence the entries in the books within the rule applied in Mayor, etc., of N. Y. v. Second Avenue R. R. Co., 102 N. Y., 572 ; 2 N. Y. State Rep., 526; West v. Van Tuyl, 119 N. Y., 620 ; 28 N. Y. State Rep., 549 ; In re McGoldrick v. Traphagen, 88 N. Y., 334 , and the question of its weight was for the referee.

Mr. Howe was the inventor of what was called a three cylinder pump and of one later known as a two cylinder pump, and there was evidence tending to prove that they were the only kind of pumps for which materials were furnished by Cobb, Herrick & Co., within the -time before mentioned. Then the defendant offered to prove the cost per pump of the former, including all the materials furnished for and the work done upon them by that company during the period from June 1, 1877, to January 14, 1878 : also, that the amount of the account in question exceeded by several hundred dollars the cost of one hundred pumps ready for the market. The evidence was excluded upon the plaintiff’s objections, and exceptions were taken, and a like offer and r-uling and exception were made and taken in respect to the two cylinder pump. There was evidence to the effect that besides putting the prepared materials together, the painting of the pumps constituted substantially all the work of completion. The witness appeared to be qualified to give the evidence, and the offers were in such form that it must be assumed that, if admissible, the facts would have been proven in a proper manner. The controversy had relation to the quantity of materials and the extent of the work performed by that firm within the limits of the defendant’s order, and,, upon that subject there was a conflict in the evidence of the parties. The account upon which the plaintiffs sought to recover consisted of numerous items for both materials and work in preparing them. The question was not simply what was furnished

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and done for Howe, or for him and Cowles, who .was interested with Howe in the business, but for what the defendant was chargeable by virtue of his order, and that depended upon the call made upon Cobb, Herrick & Co. for and the supply by them of materials and services within the limitation of the order. This was measured by number of pumps.

It would therefore seem proper to prove the cost to Howe and Cowles of all the materials and work supplied and performed by the plaintiffs’ assignors for and upon each pump. In that view it was competent for the defendant, if he could, to prove that the aggregate expense of the construction of the pumps, not exceeding the prescribed number, for which such materials and work were supplied and done, was less than the amount of the plaintiffs’ alleged claim founded upon such account. This would have been a step on the way to proof tending to show the extent of the defendant’s liability. The value of the evidence offered or the weight of it is not the subject of consideration here. It is sufficient that the evidence was competent and that the defendant may have been prejudiced by its exclusion. The ruling excluding the evidence was error.

Ho other exception appearing in the record was well taken.

The judgment should be reversed and a new trial granted, costs to abide the event

All concur, except Follett, Oh. J., and Vann, J., not sitting.