Boyd v. Fumonte — 54 N.Y. St. Rep. 244

Majority

p. 244

Francis G. Boyd et al., Resp’ts, v. Louis A. Fumonte, App’lt.

(New York Common Pleas, General Term,

Filed August 9, 1893.)

Headnote

Sale—Weight of evidence.

In an action for goods sold plaintiffs’ evidence tended to show that their . salesman was ignorant of any partnership existing between defendant and one 0., and that the sale was to defendant, and that the check of 0. was ■ accepted on condition that it was "to be credited if paid. Defendant testified to the partnership, and that the salesman was informed thereof, and that the check was accepted generally. The check was not paid. Held, that it was competent on this evidence to find in favor of plaintiffs for the purchase price, and such finding would not he disturbed.

Appeal from the judgment of the district court in the city of New York for the second judicial district, rendered in favor of the plaintiff.

John F. Foley, for resp’t; Harris Wilson, for app’lt.

The action was brought to recover for wines sold and delivered by plaintiff to defendant. Upon the trial plaintiffs’ salesman testified that he was ignorant of any copartnership existing between defendant and Coari, and that the wines were sold to defendant upon the latter’s credit. Defendant testified that he and Coari were partners, and that plaintiffs’ salesman was so informed at the time of the sale. Next plaintiffs introduced evidence to show that Coari’s check was accepted in payment conditionally only, to wit: that it was to be credited in payment if paid on presentation. This also defendant attempted to refute. It was conceded that the check was not paid.

Upon the conflict of evidence the court below decided in favor of plaintiffs for the agreed purchase price, as it was quite competent for it to do.

Defendant has therefore not sustained the burden of showing error, and the judgment appealed from must be affirmed, with costs.

Judgment affirmed, with costs.

GrlEGERiOH, J., concurs.