Wylie v. Kelly

Clerke, J. I. I think there was no payment for the goods, to take the case out of the statute. Munroe & Co. undoubtedly were indebted in a large amount, to the plaintiff, at the time of the alleged sale. There was no proof, direct and express, even that the price of the goods should be applied to the debt; and if there was, it would not be sufficient without also showing that the price was actually applied, by receipt or otherwise, to bring it within the exception of the statute. So far from this, it would appear from the bill of parcels that the latter was to give a note at ten months, payable to his own order. II. Was there evidence enough, relative to acceptance and delivery, to go to the jury ? There was an agreement to sell, on the 25th of February, 1861; a record of sale was made, in the book of original entries of Munroe & Co. of the same date; the goods were set out on one side of the store, by themselves, and an account taken of them, I presume, as goods of the plaintiff The witness Mason, the clerk of Munroe & Co., states, on being asked why the plaintiff had not taken away the goods, that he had no store in Paterson where he lived, and that the proper market for such goods was Hew York. The same witness states that the plaintiff, after the goods were set apart, on one side of the store, consigned them to Davis, for sale. The plaintiff in his evidence states that when he purchased he meant to send the goods to Kenny & Lockwood for sale; but he was overruled by Mr. Mason (the clerk) and Mr. Davis, who said that Kenny & Lockwood did not sell such goods. Munroe & Co. said they would be able to get better prices, and would sell them on a commission of one per cent, if he would allow them to sell them, and he then consigned them to Davis for sale on their [599] premises, who accordingly “had gone on to sell these goods and others.” [New York General Term, May 2, 1864. These were acts which may constitute a delivery. I am inclined to think it should have been left to the jury to say, under all the circumstances of the case, whether these acts did or did not amount to a delivery. The verdict should be set aside, and a new trial ordered; costs to abide the event. Leonard, J. The case of Gray v. Davis (10 N. Y. Rep. 285) is controlling. The question of delivery &c. must be left to the jury. I concur with Judge Clerke. Sutherland, J. I should have concurred if the case had shown that the plaintiff requested the question of delivery to be submitted to the jury. New trial granted. Zeonard, Gierke and Sutherland, Justices.]