Richards v. Ross

This action was brought to recover the sum of twenty-four dollars, the purchase price of a harness alleged to have been sold by the plaintiff to the defendant. The justice rendered judgment for the plaintiff, but the County Court reversed upon the ground that the evidence submitted by the plaintiff was not sufficient to sustain the judgment.

The question thus presented involves a careful examination of the evidence. The plaintiff testified that about the eighteenth of November last “ Mr. Ross came into my store, and said he had sold a big team of horses to Mr. Hemingway, and he had to have a set of harness for them. He looked at two or three different sets of harness and said, ‘ This one would do if I would change it, and fix it up a little it would be all right.’ I had the bill charged to Mr. Ross. I didn’t know this stranger. Q. What further was said, if anything, at that time % A. On the 24th this stranger came along, and I let him have the harness. On the 17th or 18th of November, when Mr. Ross was there, I told him I had charged the harness to

It appears to us that this evidence was sufficient to establish a sale. The defendant selected the harness, ascertained the price, ordered it changed so as to fit the team, and after the harness was delivered said that it was all right, and that the plaintiff would get his pay.

The learned county judge characterized this testimony as “absurd to suppose that the defendant would be buying harnesses for horses he had sold.” We do not think that this conclusion necessarily follows. The defendant said that he had sold his big team of horses to Hemingway, and had to have a set of harness for them. We think the inference that the harness was included in the sale with the horses is permissible.

It further appeared that the defendant had not sold his horses to Hemingway; that the sale was not completed, and the horses never left the possession of the defendant; that when Hemingway took the harness from the plaintiff’s shop he took it to the defendant’s residence, where it ever since has remained. True, the defendant’s son, who still resides at home with his father, claims to have purchased the harness from Hemingway, but the justice evidently did

The defendant Ross was sworn as a witness in his own behalf, but he carefully avoids denying the essential statements made by the plaintiff. He starts in his testimony by stating that he was not in the plaintiff’s store on or about the seventeenth or eighteenth of November last .with one Hemingway. The plaintiff did not state that the defendant was in his store with Hemingway. The defendant then skips over that which was detailed by the plaintiff in reference to the selecting of the harness and the ordering of it, and next speaks of the bringing of the harness by Hemingway to his place. He does not deny the conversation in which the plaintiff told him that he had charged the harness to him, and that he said it was all right. He only denies that he said he would pay for the harness, or that the plaintiff would get his pay therefor. It is, therefore, apparent that the justice had good reason for believing the testimony of the plaintiff to be correct.

The judgment of the County Court appealed from should be reversed and that of the justice affirmed, with costs in this and the County Court.

Dwight, P. J"., Lewis and Bradley, JJ., concurred.

Judgment of the County Court of Ontario county appealed from reversed and that of the justice affirmed, with costs in this and the County Court.