American Distributing Co. v. Ashley — 67 N.Y. St. Rep. 734

Majority

p. 734

American Distributing Company, App’lt, v. Edward W. Ashley, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 17, 1895.)

Headnote

Pleading — Answer—Amendment.

In an action for goods sold and delivered, the answer, which denies that the goods were sold at a price agreed upon and that they were of the value alleged in the complaint, may he amended upon the trial, so as to make it more specific in this respect.

p. 735

Appeal from a judgment entered oh a verdict in favor of the plaintiff for part of the sum sued for, and from an order denying a motion for new trial, made on the minutes.

Henry Thompson, for app’lt; Hamilton R. Quier, for resp’t.

It is conceded that the plaintiff sold and delivered to the defendant, doing business under name of Stark-weather & Co., 2,626.64 gallons of spirits, on the following specified dates, on the credit of thirty days :

April 23, 1894............... ............. 432 80 gallons it 30, U ............. 487 68 it May 5, U ............. 452 10 U (Í 10, u ............. 432 76 u ÍÍ 25, a ............. 435 30 u June 1, u ............. 436 00 <t

2,626 64 “

It is alleged in the complaint that the plaintiff sold and delivered to the defendant “spirits of the value and at the agreed price in all of $3,216.78,” less an allowance of three cents per gallon, amounting to $78.77; and that there is due the plaintiff $3,138.01, with interest thereon from July 1, 1894. On the trial it was conceded that the defendant had returned to the plaintiff sixty empty barrels, for which he was entitled to credit in the sum of sixty dollars, leaving plaintiff’s claim $3,078.01, the interest on which from July 1, 1894, to December 24, 1894 (the date of the trial), is §87.-21, making the total amount due as claimed by the plaintiff §3,165.22. The jury rendered a verdict for §2,864.90, which is $300.32 less than the plaintiff’s claim. The defendant admitted in his answer the sale of the goods, but denied that they were of the value alleged, or that they were sold at the price alleged. On hhe trial the answer was amended so as to make it more specific in this respect. When the plaintiff rested, it had not proved a cause of action. It had simply shown a sale and delivery of the goods, but it had not proved that they were sold at a price agreed upon, or that they were of any value. The plaintiff showed that it had, through a clerk, presented a bill for some part of the items which the defendant refused to pay, unless the plaintiff would deduct five or six hundred dollars. The defendant was called as a witness in his own behalf, and testified that he purchased the. goods on the dates specified, upon an agreement to pay one-half of one per cent, per gallon above the market rate in consideration of a credit of thirty days. No witness was called in behalf of the plaintiff to contradict the evidence. Evidence was then given that the market value of such spirits on the dates when they were sold was from §1.06 to $1.22-2- per gallon. At the close of the evidence, the court submitted two questions to the jury: (1) Were the goods sold at an agreed price ? (2) If not sold at an agreed price, what was their fair market value? And the jury returned a verdict for $1,864.09. 2,626.64 gallons, at 1.06-|- per gallon, equal $2,797.37, less sixty dollars, for barrels returned, equal $2,797.37„

p. 736

the interest on which from July 1, 1894, to the date of the verdict is $77.52, amounting to $2,814.89, which is $50.01 less than the verdict. No exception was taken to the charge, and no exception was taken by the plaintiff, except to the overruling of two objections to the admissibility of evidence, no grounds of objection being stated; and besides, the evidence was competent. No error was committed by the court in permitting the answer to be made more definite. The answer as served denied the goods were sold at a price agreed upon, and denied that they were of the value alleged in the complaint.

The judgment and order should be affirmed, with costs.