Enoch Morgan's Sons' Co. v. Smith

Decision Date19 April 1892
PartiesENOCH MORGAN'S SONS' CO. v. SMITH et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from common pleas of New York city and county, general term.

Action by Enoch Morgan's Sons' Company against George W. Smith and another to recover for goods sold. From a judgment of the general term affirming a judgment of the trial term for defendants, plaintiff appeals. Reversed.

LANDON, J., dissenting. 7 N. Y. Supp. 648, reversed.

Chas. Steele, for appellant.

James A. Seaman, for respondents.

BROWN, J.

This appeal presents the question of the sufficiency of proof to establish a counterclaim asserted by the defendants against the plaintiff. The counterclaim arose upon the alleged performance of a contract between the parties, which was contained in a letter addressed by the plaintiff to the defendants, the material part of which is as follows: ‘New York, April 23, 1887. Messrs. Smith & Sills-Gentlemen: Your purchases of Sapolio during the year 1886 were equivalent to eight hundred and ninety cases of one half gross each. In order to more fully interest you, and encourage a larger sale, we will pay you * * * one dollar for each half gross case and fifty cents for each quarter gross case you may purchase for direct shipment during the year 1887 in excess of the number of cases mentioned above, provided you sign and strictly adhere to the terms of the inclosed agreement, and provided, also, that your purchases are only for your legitimate wants in the ordinary course of your dealings with the retail trade. Yours, truly, ENOCH MORGAN'S SONS' CO. The agreement referred to, and which was signed by the defendants, provided that they would not sell, nor allow any of their employes to sell, any of the Sapolio for less than $4.50 per case for half gross cases and $2.25 per case for quarter gross cases, and that they would not, upon sales of such articles, give longer time or greater discount for cash than generally allowed by them on other goods. The reply, by appropriate allegation, put in issue the performance of the contract, and it was therefore incumbent upon the defendants to establish its performance on their part. This they assumed to do, and upon the close of their evidence the plaintiff moved to dismiss the counterclaim on the ground that they had failed to show compliance with the condition of the agreement sued on. This motion was denied, and the exception taken presents the question for review. We are of the opinion that this ruling was erroneous. There was...

To continue reading

Request your trial
1 cases
  • Wainwright v. Low
    • United States
    • New York Court of Appeals Court of Appeals
    • April 19, 1892

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT