Enoch Morgan's Sons' Co. v. Smith
Decision Date | 19 April 1892 |
Parties | ENOCH MORGAN'S SONS' CO. v. SMITH et al. |
Court | New 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.
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: 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...
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