Barber v. Lyon

By the Court, C. L. Allen, P. J. The testimony in this cause shows conclusively, to my mind, that the plaintiff had agreed to make á wagon for one Miller; that Miller gave to the [625] defendant an order upon the plaintiff for that wagon, which was accepted, and the wagon afterwards delivered upon it. There is some little obscurity about the terms of the order, owing to the difficulty of proving its exact reading, by parol. It was shown to be in the hands of the plaintiff, and he declined to produce it upon notice; and under these circumstances the inferences are to be taken, in connection with the proof, most strongly against him. He could have removed all doubt by its production; and his suppression of it, upon the trial, shows that the evidence, at least, did not exceed its contents. The plaintiff, by accepting the order, induced the defendant to look to him instead of Miller; and had he afterwards refused to deliver the wagon, he would have been liable to an action on the part of the defendant. In Morton v. Naylor, (1 Hill. 583,) it was held that an order not payable in money, and drawn on a particular fund or property, is an equitable assignment of the fund on which it is drawn, and that the drawee, being notified of the assignment, must pay accordingly, though there be no formal acceptance. In that case., where a landlord, for value received, gave an order on his tenant to pay one Warner the rents accruing during a certain time, which the tenant, on the order being presented, promised to do, it was decided that he was bound to do so, notwithstanding the landlord subsequently ordered the tenant not to pay. (And see 5 Paige, 640.) But the order here was accepted in writing, as appears from the testimony. And if any balance remained to be paid upon it by the defendant, (see 2 Hill, 582,) the plaintiff had it in his power to show that fact, by producing and giving it in evidence. After accepting it, and delivering it back to the hands of the defendant, neither the plaintiff or Miller could have done any thing to change his, the plaintiff’s, liability to the defendant. (1 Hill, 583. 3 Paige, 373.) After the acceptance of the order, the parties met at the turnpike gate, as testified to by one of the witnesses, the plaintiff having the wagon in question, and having evidently started with it from 'his place of residence for the purpose of delivering it, and the defendant meeting him for the purpose of receiving it. The plaintiff immediately [626] placed the wagon on the side of the road, as if for delivery, and the defendant handed him a paper, evidently the accepted order, and asked him if he would accept of that. The plaintiff said he would accept of it as far as it went. How far did it go ? Or what were its contents ? In the absence of the order, which the plaintiff refused to produce, and under the testimony, the jury were left to infer that it was an unconditional accepted order for the delivery of the wagon to the .defendant, and they found, most probably, in accordance with the facts. At all events their- verdict was warranted by the evidence, and cannot be disturbed. There certainly was no evidence on which to sup^ port a contract of sale and purchase of the wagon ; the defendant declaring, as he drove off with the wagon, that he would not be responsible for a single mill. [Saratoga General Term, July 8, 1856. There was no objection to the evidence that the plaintiff took the wagon left by the defendant in the road. It was proper to prove what was said or done by either party, at the time the parties met, and when the defendant received the wagon. Whether the proof of what the plaintiff said, at the time he showed the order to the witness, Drake, was proper, it is not necessary to determine. The question was objected to; but it does not seem to have been insisted upon by the plaintiff’s counsel, nor decided, by the justice. The judgment of the justice must be affirmed, with costs. C. L., Allen, Paige, James and Rosekrans, Justices.]