Everett v. Parks

By the Gourt, Johnson, J. The action was commenced in a justice’s court, to recover the price of goods sold and delivered upon credit. The complaint alleged that the plaintiffs, on or about the 17th of December, 1870, at the defendant’s instance and request, sold and delivered to him one half chest of tea of fifty-three pounds, at ninety cents per pound, which price the defendant agreed to pay in thirty days. , The defendant appeared, on the return day of the summons, and answered, denying each and every allegation of the complaint. . The cause. was adjourned, and on the adjourned day the defendant did not appear, and the plaintiffs proceeded to trial in his absence. The plaintiffs were shown, upon the trial, to have been merchants, doing business in the city of Utica. There is no evidence in the case to show where the defendant resided, except what may be inferred from a receipt for "the property, given by an agent of the ¡New York Central ¡Railroad Company, in which, under the head of “ articles,” is “D. Parks, Camden, N. Y., R. W. & O. R. R.” This' "receipt is dated December 19, 1870, at “ Utica Station,” and is signed “'W. ¡N". "Weaver, agent.” This receipt is the only evidence of the delivery of the property, or of its shipment to the defendant; except the general expression of one witness, that “ tea was shipped to defendant,” and of another, that “tea was sent by rail, I think.” The receipt was shown to be in the handwriting of the agent “Weaver,” and to have been received by the plaintiffs, on the delivery of the tea to the railroad company. The bargain between the plaintiffs and the defendant, was proved [15] by one Miles, their agent, who testified that he sold the tea to the defendant, at the price of ninety or ninety-five cents per pound, and that it was to be paid for in thirty days; that he did not deliver it, but sent- an order for it to the plaintiffs, and it was shipped to the defendant. There is not a particle of evidence in the case to show any agreement about the delivery of the property, by the pMntiffs to the defendant, or as to the manner in which, or the time when, it was to be made; • or that the defendant ever received it; or that he knew that it had been, or was to be, delivered to the railroad company, for him. In the absence of some order, or agreement, on the part of the defendant to have the property sent to him by railroad, or of some evidence in regard to usage, or the course of trade, from-which an agreement, to have it so sent, might be inferred, a delivery to the railroad company was no delivery to the defendant. It might as well have been delivered to any other stranger, for the purpose of charging him. And without some such evidence, the receipt of the railroad company, by its agent, which was used in evidence, was no evidence against the defendant, that the property had been received by the company on his account. Before the. receipt could be made evidence to charge the defendant, it was necessary for the plaintiffs to show that they were authorized by the defendant to send the property to him by that railroad company. As the defendant did not appear upon, the trial, it was incumbent on the plaintiffs not only to prove a delivery of the property to the defendant personally, or to some person designated by him to receive it on his account, but 'to prove it by competent and proper evidence; and if they failed in either respect, the defendant may take advantage of the error, on appeal. (Northrup v. Jackson, 13 Wend. 85. Squier v. Gould, 14 id. 159. Warnick v. Crane, 4 Denio, 460. Perkins v. Stebbins, 29 Barb. 523.) The plaintiffs’ counsel seeks to avoid the difficulty in [16] regard to the proof of delivery, by urging that it was wholly immaterial, inasmuch as the contract, being for the sale of goods of the value of less than $50, did not come within the statute of frauds, and was therefore valid and binding without any delivery of the property. But the answer to this is, that the complaint was for goods sold and delivered, and without proof of delivery the cause of action stated in. the' complaint, and upon which issue was taken, was not made out. Had there been no evidence in respect to a delivery, the judgment should have been reversed for that reason, as the defendant did not appear on the trial, and waived nothing. [Fourth Department, General Term, at Rochester, March 5, 1872, Mullin, P. J., and Johnson and Talcott, Justices.] Both the judgment of the justice and of the county court, affirming the same, must therefore be reversed.