Graham v. O'Niel — 2 N.Y. Super. Ct. 474

Majority

p. 474

James Graham versus Felix O’Niel.

Headnote

In an action for goods sold and delivered, it appeared that the defendant introduced one Mrs. C. to the plaintiff, and directed him to let her have what goods she should at any time want, and charge the same to him, and he would see the plaintiff paid. Goods were delivered accordingly, from time to time, which were charged to the defendant; and Mrs. C. made various payments, which were credited in the account; but a balance having accrued, this action was brought to recover its amount. The Judge, charged the jury, that if the plaintiff gave credit to Mrs. C., or if the defendant limited his responsibility to the first purchase, the verdict ought to be for the defendant. But if they believed, that the credit was given originally to the defendant, if it was unlimited in point of time, and had not been countermanded, their verdict should be for the plaintiff. The jury having found for the plaintiff the charge of the Judge was held to he correct; that the case was not within the statute of frauds, and that the plaintiff could recover upon the common counts, for goods sold and delivered.

Assumpsit for goods sold and delivered. The declaration contained the common counts only, and the defendant pleaded the general issue. It appeared, at the trial, that the plaintiff was a shopkeeper, and that the defendant, in September, 1828, came to the plaintiff’s shop, in company with a Mrs. Connolly, (a pedler,) introduced her to him, and told the plaintiff to let her have what goods she might want, at any time, and charge the same to him, and he would see the plaintiff paid. Mrs. C. accordingly took up goods of the plaintiff, at the time of her introduction, and for a long time afterwards, at different periods, and made payments from time to time, on account of her purchases. The goods were entered in the books of .the plaintiff to the debit of the defendant, as goods delivered to Mrs. C.; and bills of parcels were rendered in the same form to her. After this trafílele had been carried on for several years in the same manner, Mrs. C. failed, leaving a balance due to the plaintiff, and to recover that balance this action was brought.

The defendant contended, first, that the case was within the statute of frauds; and secondly, that there could he no recovery except upon a special count. The Chief Justice, (before whom

p. 475

the cause was tried,) reserved the questions of law, and directed the defendant to proceed with the cause.

The defendant then introduced evidence to show, that the credit given Mrs. Connolly, was limited by him to the first purchase; and the C. J. charged the jury, that if the credit was given to Mrs. C. or if it was limited to the first purchase, to find a verdict for the defendant. But if the credit was given originally to the defendant, and there was no limitation as to time, nor countermand of the credit, that, then, their verdict should be for the plaintiff.

The jury found a verdict for the plaintiff, and the defendant now contended, that the plaintiff was not entitled to judgment upon the questions of law.

The cause was argued by Mr. R. Bogardus, for the defendant, and by Mr. Anthon, for the plaintiff.

For the defendant it was contended, I. That the declaration ought to have been special, stating the agreement as made between the parties.

II. That the proof showed the case to be within the statute of frauds ; that it amounted to a request, on the part of O’Niel, that the plaintiff would sell to Mrs. Connolly, and a promise on his part to see him paid for the goods. [6 Cowen’s R. 346. 8 J. R. 39. 6 Mod. Rep. 249. 2 Term. R. 80.]

III. That the whole claim, except as to the credit given within one year from the sixth day of September, 1823, was clearly within the statute.

For the plaintiff it was contended, I. That upon the sale of the goods, the credit was given by the plaintiff directly to the defendant, and not to Mrs. Connolly; and that the credit was so given, and the dealings so conducted by the defendant’s authority.

II. That the credit, as authorized by the defendant, was unlimited, and had never been countermanded. In pursuance of the engagement, the goods sold were charged directly to the defendant, who alone was responsible for them.

p. 476

III. That the facts presented the ordinary case of goods sold and delivered by the plaintiff to the defendant, and had nothing to do with the statute of frauds. That the common counts were all that the case required, the facts not being susceptible of, or requiring a special count.

This was an action for goods sold and delivered. It appeared, that the defendant introduced one Mrs. Connolly to the plaintiff, and directed him to let her have what goods she should at any time want., and charge them to him, and he would see him -paid. Goods were accordingly delivered to her, from time to time, and charged to the defendant. She made various payments, which were credited, and this action was brought to recover the balance.

The Judge directed the jury, that if they found that the plaintiff had given credit to Mrs. Connolly, or that the defendant had limited his responsibility to the first purchase, they should give a verdict for him; but if they believed, that the credit was given to the defendant, and with his authority, and that such authority was unlimited as to time, and had not been revoked, they ought to find for the plaintiff. The jury found their verdict for the plaintiff.

The direction of the Judge appears to me, to have been right, and the verdict of the jury is supported by the evidence. The facts present a case, not of a collateral, but an original undertaking to pay for the goods. They were furnished to Mrs. Connolly, as the agent of the defendant, and on his account, and by his express authority, and the purchase of them stands upon the same footing, as if it had been made by any member of the defendant’s family, whose authority to purchase on his account, had been recognized by him. In this view of the case, the statute of frauds .has no application to it, nor was there any necessity for a special count in the declaration. It is the ordinary case of goods sold and delivered to the defendant by his agent, and a recovery may be had on the general counts.

Judgment for the plaintiff.

[J. Hildreth, Att'y for the plff. R. Bogardus, Att'y for the deft.]