Northern Line Packet Co. v. Platt

Gileillan, C. J. The rulings of the court below excluding evidence offered by defendant to-show the amount of wheat at each of the places, Hudson and Glenmont, cannot be sustained upon the theory that the reports made to plaintiff from time to time constitute an account stated. Conceding that they could in any case have that effect, yet, to enable plaintiff to recover upon them as such, it was necessary that he should declare upon them as such, so that if there were fraud or mistake, sufficient to avoid the effect of the stated account, the defendant might have an opportunity to allege it. By relying in his complaint upon the original transactions, and not upon the claim of a stated account, he treats the original transactions as still open for proof; and upon an answer making an issue as to the allegations of the complaint, each party has the right to offer proof as to such original transactions. Eor the error in excluding the evidence offered by defendant there must be a new trial; but as the plaintiff makes the point here which we think, from the record, was not' made below — that the reports operate as an estoppel — we will say that while, perhaps, there was sufficient evidence, as it stood when the parties rested, to sustain a verdict based on 417 that idea, there is certainly not enough to justify the court in directing a verdict for the plaintiff. The plaintiff had a right to rely and to act on the information furnished by the reports; but to justify a direction to the jury to find for the plaintiff, it must very clearly appear that the plaintiff not onl}’' had the right to rely and act on the information, but that it, relying upon it, took such action that', to permit defendant to prove the truth, contrary to the reports, will operate to the prejudice of plaintiff. It could operate to its prejudice only if, by reason of being misled by the reports as to the amount of wheat at Grlenmont, it failed to remove the wheat before the fire. There certainly is not proof that, had it known that the surplus of its wheat was at Grlenmont, it would have removed it before the fire, sufficient to justify taking the decision of the question from the jury. Order reversed and new trial ordei’ed.