Cowden v. Teale

Headnote

Appeal from an order made at the’ Special Term granting a. reference.

In this case, the plaintiff’s claim rested upon an account embracing many items. The defendant admitted the items to be correct, but alleged that they related to merchandise which was to be sold by the plaintiff on commission, that he had violated the rights of the defendant by selling it at improper times, and for less than its value. The account of the plaintiffs embraced advances, commissions and charges in reference to this merchandise. The defendant interposed a counter-claim, relating to it exclusively. The General Term held, that, in order to sustain his claim, which was based upon the contract made between him and the plaintiff, it would be neces

sary for the defendant to show that each sale of the article sold was improperly made. That this would involve proof of the value of the article, and the circumstances showing the sale to have been disadvantageous and improper. That the effect of this was to assail the plaintiff’s account, because, though the advances and charges are admitted, the sales are questioned and disputed ; and that thé case was, therefore, properly referred.