Riley v. Lowry — 44 N.Y. St. Rep. 233

Majority

p. 233

Francis Riley et al., Resp’ts, v. George E. Lowry, App’lt.

(Supreme Court, General Term, Third Department,

Filed March 15, 1892.)

Headnote

Contract—Agreement to pat for damages to wagon—Counterclaim.

■ In an action brought in a justice’s court to recover the cost of repairing a certain wagon, the complaint alleged that plaintiff as liveryman hired to defendant a team, harness and wagon; that while in his possession the wagon was broken, and that he had agreed to pay the costs of repairing before they were made. The answer set up a counterclaim for damages for injuries received in consequence of the unsafe condition of the conveyance and also set up a general denial. On the trial defendant’s evidence tended to show that the injury was caused by a defective harness, but did not disprove the agreement to pay for the repairs as proved by plaintiffs’ witness. Held, that the agreement contained all the elements of a valid contract, and that the justice, holding from the evidence that such an agreement was made, was authorized to give judgment for plaintiffs, nor was he required to find that the defendant had established any counterclaim.

Appeal from a judgment of the Eensselaer county court affirming the judgment of a justice’s court.

William, Powell,, Jr., for app’lt; Elmer E. Barnes, for resp’ts..

The plaintiffs brought this action in justice’s court to recover an amount which they allege the defendant agreed to pay for repairs to plaintiffs’ wagon, alleged to have been broken while in the.possession of the defendant.

The case shows that the plaintiffs, as liverymen, hired to defendant a team, harness and wagon, and while in the possession of the defendant the wagon was broken.

The complaint alleges these facts, and charges that the defendant requested the plaintiffs to have the wagon repaired, and promised and agreed to pay the plaintiffs the amount of the expense of such repairs, and that the expense of the same was $24.75, which the defendant refused to pay.

The answer admits the hiring of the wagon and team of plaintiffs, but alleges payment for the same ; sets up as counterclaim for damages for injuries received in consequence of the unsafe condtion of such conveyance, and also sets up a general denial. The proofs on the trial on the part of the plaintiffs tended to establish the allegations of the’ complaint, and were sufficient for that purpose if believed by the. justice.

The evidence on the part of the defendant tended to show that the injury occurred by reason of the breaking of a strap of the harness, and some of the evidence tends to show that the harness was defective. But the evidence on the part of the defense does not disprove the agreement of the defendant to pay for the repairs, as proved by plaintiffs’ witness.

The appellant now insists that no recovery could legally be had in this action, as the injury to the wagon was in consequence

p. 234

of defects in the plaintiffs’ harness, and that the plaintiffs, and not the defendant, took the risk of such defect

It is quite true that the defendant, as a bailee for hire of this wagon, would not be liable for the failure of the same to perform the purpose for which it was hired, if' it broke without any fault of the bailee. Harrington v. Snyder, 3 Barb., 380 . But the plaintiffs’ right to recover in this action did not depend upon the relation of bailor and bailee, existing between the plaintiffs and the defendant.

The plaintiffs rested" their right to recover upon the alleged agreement of the defendant to pay for the repairs, and the uncontradicted evidence upon that is, that the plaintiffs were to send for the wagon and have it repaired and he would pay the bill.

That agreement contained all the elements of a valid contract, and if the justice believed, from the evidence, that such an agreement was made, and that the plaintiffs had performed it on their part, and that defendant had not performed it on his part, he was authorized to give judgment for the plaintiffs for the amount of the cost or expense of such repairs.

. Nor do we think that the justice, under the defendant’s proof, was required to find that the defendant had established any counterclaim which should be deducted from the claim of the plaintiffs.

The judgment-of the justice and of the bounty court must be affirmed, with costs.

Putnam and Herrick, JJ., concur.