p. 535The Swan Lamp Manufacturing Co., Resp’t, v. The Brush-Swan Electric Light Co., of New England, App’lt.(New York Superior Court, General Term,Defendant became the sole agent for the sale of lamps, etc., manufactured* by plaintiff for a certain territory under an agreement by which plaintiff was to deliver such goods as were sold by defendant on board of such cars as it might designate, and defendant was to be allowed on such sales a discount of twenty per cent from trade prices, and a further discount for cash. Payment was to be made by ninety day drafts. Held, that this constituted a sale of the goods to defendant and not to its customers.
The former rule, that a party who has fully performed a special contract on his part may count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially on the agreement, has not been changed by the Code.
3. Same—Unexpired credit.
In_ an action for goods sold an objection that as to a part the term of credit had not expired is unavailing when not raised by the answer.
Appeal from a judgment entered in favor of the plaintiff on the report of a referee, to whom it was referred to determine the issues.
Cravath & Houston, for app’lt; G. H. & F. L. Crawford, for resp’t.
It is alleged by the defendant and admitted by the plaintiff that the goods furnished by the plaintiff were delivered under and pursuant to a contract between the defendant and the Swan Incandescent Electric Light Co., which was transferred by that company to the plaintiff, so that the plaintiff for all practical purposes was substituted as a party to the contract in place of that corporation. The defendant by the contract became the sole agent for the sale of electric lamps and other electrical apparatus manufactured by the plaintiff, which agency covered certain territory specified in the agreement. The plaintiff was to deliver such goods as might' be sold by the defendant and ordered by it on board of such cars or other conveyances as it might designate, and the defendant was to be allowed on such
p. 536sales a discount of twenty per cent, from the trade price fixed by the plaintiff. The goods so delivered were to be paid for by the defendant by ninety day drafts or, at its option, in cash, with one and a half per cent, additional discount. The plaintiff filled orders furnished by the defendant until it became indebted in the amount found due by the referee. The transaction between the plaintiff and defendant was practically a sale of goods by the former to the latter on its credit at twenty per cent, less than trade prices, deliverable in such manner as it directed. It certainly was not a sale of goods by the plaintiff to the defendant’s customers, for the plaintiff by the contract was to make no sales in the territory assigned to the defendant, except through it and on its responsibility. The defendant insists that the plaintiff should have declared on the special agreement, and could not recover as for goods sold and delivered. The answer to that objection is, that the Code has not changed the former rule of pleading, that a party who has fully performed a special contract on his part may count upon the implied
assumpsit of the other party to pay him the stipulated price, and is not bound to declare specially on the .agreement.
Farron v.
Sherwood, 17 N. Y., 227 ;
Hosley v. Black, 28 id., 443;
Higgins v.
Newtown & F. R. R. Co., 66 id., 604. The evidence adduced satisfactorily sustains the findings and conclusions of the referee, and we find no error in the rulings that require a new trial. The objection that, as to a portion of the goods, the credit of ninety days had not expired when the action was commenced is unavailing because not raised by the answer.
Smith v.
Holmes, 19 N. Y., 271 . This upon the ground that new matter must be pleaded. Code, § 500, subd. 2. It follows tljat the judgment appealed from must be affirmed, with costs.
Sedgwick, Ch. J., and Freedman, J., concur.