Liftchild v. Johnson — 31 N.Y. Super. Ct. 459

Majority

p. 459

GEORGE LIFTCHILD and Another, Plaintiffs and Respondents, v. GEORGE F. JOHNSON, Defendant and Appellant.

Headnote

A continuing contract to pay for all the beef which should be sent to a market stand occupied by one McM. cannot be terminated by a mere notice to the vendor that the defendant had nothing to do with the business carried on at such stand. The promise to pay had no connection with the business; and the contract could be cancelled only by notice that the defendant would no longer be liable.

Before Monell, Jones, and Freedman, JJ.

[Decided July 2, 1869.]

This case was tiled before Chief-Justice Robertson and a jury-

The action was brought to recover for beef sold to defendant. The plaintiffs proved on the trial that the defendant purchased beef of plaintiffs and directed it to be sent to McMann’s stand, in Fulton Market, and promised to pay for all meat that should be sent to that stand. This was denied by the defendant, who also proved that he gave a notice “forbidding all persons giving trust in his name.”

Defendant’s counsel asked the Court to instruct the jury “ that if the plaintiffs had notice that the defendant had nothing to do with the business carried on at the stand in question, the defendant would not be liable for any thing bought after that notice.”

The Court refused so to charge, and the defendant excepted.

The jury found a verdict for the plaintiffs for the full amount claimed.

The defendant appealed to the general term.

Mr. Nelson Smith for appellant,

The Court erred in refusing to instruct the jury that if Foster notified plaintiffs that defendant had nothing to do with the

p. 460

"business at McMann’s stand the defendant would not be liable for any thing bought after that.

It was entirely immaterial how the plaintiffs were notified of the defendant’s withdrawal from the business, or ceasing to stand as security for McMann’s purchases. If, in fact, the plaintiffs actually received such notice before selling, they had no right to rely upon defendant for payment (Vernon v. Manhattan Co., 17 Wend., 526 ).

If the defendant stated to the plaintiffs that he was going into business at McMann’s stand, and that he would pay for all beef that plaintiffs sent there, as soon as the defendant withdrew from that business, and notice of that fact was communicated to the plaintiffs, the defendant’s liability for beef which he did not buy, or authorize to be bought, ceased.

Mr. E. A. Doolittle for respondents.

The plaintiffs fully proved their cause of action, as alleged in the complaint, and defendant’s evidence, taken as a whole, tends to strengthen plaintiffs’ case. For he admitted he made purchases from plaintiffs, and others, for McMann, and paid the bills, and now seeks to excuse himself from liability because he • advertised.

The questions of fact were fairly submitted to the jury without exception, and their finding is conclusive (Amox v. Homans, 25 How., p. 427; Lewis v. Blake, 29 Barb., 218 ; 33 Barb., 397 )-

By the Court:

The question submitted to the jury was whether Johnson, the defendant, had promised the plaintiffs to pay them for all the beef they should send to McMann’s stand in Fulton Market. The jury found such promise was made, and gave a verdict for the plaintiffs.

The defendant attempted to escape from the consequences of . his promise, by showing that one Foster had said to the plaintiffs that the defendant had nothing to do with the business carried

p. 461

on at McMann’s stand. This was voluntarily said by Foster, without the direction or knowledge of the defendant.

Upon such evidence the defendant asked to have the jury instructed “ that if Foster informed or notified the plaintiffs, on the 15th of November, that the defendant had nothing to do with the business transacted at the stand of MclVIann, the defendant would not be liable for any thing bought after such notice.” The instruction was refused and the defendant excepted.

' The object of the evidence was to give to it the effect of terminating the defendant’s liability, which was a continuing one. Had it such effect? Johnson, the defendant, had denied giving the promise to pay, as claimed by the plaintiffs, or any promise whatever to pay for beef sent to McMann’s stand, and it was therefore a little inconsistent to claim that a liability he had never incurred was terminated by notice.

The contract, as the jury found it, was that the beef was sold to the defendant. It was to be sent to McMann’s stand and paid for by the defendant. Now the notice was that the defendant' had nothing to do with the business carried on at that stand.

Besides, the notice being by a mere volunteer, without any direction from the defendant, or even with his knowledge, it conveyed no information to the plaintiffs that the defendant no longer intended to be responsible. Saying that he had nothing' to do with the business carried on at McMann’s stand bore no' relation whatever to the defendant’s engagement, which was to'' pay for all the beef sent to such stand, and did not change the ground upon which his liability had attached. The promise to'' pay had no connection with the business carried on at McMann’s' stand, or with that which the defendant said he was going into.

At least, if the defendant desired or intended to terminate his' liability, he was bound, it seems to me, to furnish better evidence-of notice to the plaintiffs than was given in this case.

There was no error, therefore, in refusing to charge as re-'' quested by the defendant. ■

Judgment affirmed.