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Parshall v. Smith

3 Silv. Sup. 476 Court Supreme Court, Fourth Department, General Term, Decision date 1889-07-20 English

Delivered by Martin, J.—We

Contents

Majority

p. 476
George W. Parshall, Respondent, v. Mary Ann Smith, Appellant.
Supreme Court, Fourth Department, General Term,
July 20, 1889.

Headnote

1. Evidence. Married woman.—Evidence tending to show that, both before and after its assignment to the plaintiff, an account for material furnished, at the request of defendant’s husband, and used in repairing a house belonging to her, was presented to her, and that she said that she would give her note for it, though denied by the defendant in her testimony, is sufficient to justify the court in finding that the materials were furnished to the defendant, and in holding her liable therefor.
2. Assignment. Evidence.—An account can be assigned orally; and what was said at the time, though in the absence of the debtor, is competent to show the consideration of the transfer.
Action to recover material sold by plaintiff’s assignor, at the request of defendant’s husband, and which were used in • repairing a house belonging to defendant.
p. 477
Evidence was given, under objection, tending to show that, both before and after the assignment of the claim to the plaintiff, the account was presented to the defendant, that she was told its amount, and that she said that it would be paid, that she would give her note for it. These facts were denied by the defendant in her testimony.
Evidence of an oral transfer of the claim to plaintiff, that the plaintiff agreed to take it in part payment of an indebtedness if it was all right; that no writing was drawn and the account was not present, was offered, objected to as incompetent and immaterial, and on the ground that the défendant was not present, and admitted.
Judgment was rendered in favor of the plaintiff. • .
' Appeal from a judgment of the county court, affirming a judgment rendered by a justice of the peace.
E. M. Harris, for appellant.
Edick & Smith, for respondent.

think the evidence was sufficient to justify the justice in finding that the materials furnished by the plaintiff’s assignor were furnished to the defendant, and in holding her liable therefor. Fairbanks v. Mothersell, 60 Barb. 406 , 408; Fowler v. Seaman, 40 N. Y. 592 ; Garretson v. Seaman, 54 Id. 652 ; Husted v. Mathes, 77 Id. 388; Treman v. Allen, 15 Hun, 4 ; Tiemeyer v. Turnquist, 85 N. Y. 516 ; Mackey v. Webb, ante, 308; chapter 381, Laws of 1884.

We are also of the opinion that the evidence was sufficient to establish the sale and transfer to the plaintiff of the claim upon which this action was brought.

We have examined the rulings of the justice on the admission and rejection of evidence, and have found none that disclose error or require special discussion. We think the county court has rendered judgment according to the justice

p. 478
of the case, and that such judgment should be affirmed. Code Civ. Pro., §§ 306, 307.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.

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