B. & F. Leasing Co., Inc. v. Ashton Companies, Inc.

• Citation: 345 N.Y.S.2d 687,42 A.D.2d 652
• Court: New York Supreme Court Appellate Division
• Decision Date: 27 June 1973
• Parties: B. & F. LEASING CO., INC., Respondent, v. ASHTON COMPANIES, INC., Appellant.

Page 687

345 N.Y.S.2d 687

42 A.D.2d 652

B. & F. LEASING CO., INC., Respondent, v. ASHTON COMPANIES, INC., Appellant.

Supreme Court, Appellate Division, Third Department.

June 27, 1973.

Pinsky, Canter & Pinsky, Syracuse (John L. Bell, Plattsburgh, of counsel), for respondent.

George F. Perkins, Saratoga Springs (William J. Herron, Malone, of counsel), for appellant.

Before STALEY, J.P., and GREENBLOTT, COOKE, KANE and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, entered July 13, 1970 in Essex County, upon a verdict rendered at a Trial Term in favor of plaintiff.

Defendant Ashton Companies, Inc. (Ashton), operated a ready-mix concrete manufacturing business during 1965 and 1966. In 1965, Ashton entered into contracts with three road construction companies involved in building the Northway to furnish them with specific quantities of ready-mix concrete. Ashton also entered into a contract with Warren Aggregates, Inc. (Warren), whereby Warren agreed to furnish aggregate to Ashton's batch plant in North Hudson, New York, a semi-portable facility which Ashton erected to assist in fulfilling its Northway contracts. Originally Warren produced the aggregate at Ashton's batch plant, but there came a time when it became necessary to truck the material from Chestertown to the plant. One of the truckers making such deliveries was plaintiff B. & F. Leasing Co. (B & F), which continued to do so until sometime in May, 1966. Subsequent to the cessation of deliveries, defendant's batch plant manager, Edward Ashton, and plaintiff's manager, Robinson, met twice regarding said deliveries. Robinson contends that the outcome of these discussions was an oral contract under which Ashton agreed, on behalf of his company, to pay B & F $1.95 per ton for delivery of aggregate, Ashton denying having entered into such a contract. In any event, subsequent to these conversations, B & F resumed deliveries of aggregate from Warren to Ashton during June, July, and August, 1966. In September, 1966, Robinson told Edward Ashton that B & F was not being paid by Warren for hauling materials to Ashton, and B & F was going to stop hauling. Edward Ashton relayed this information to Ingmire, defendant's vice-president, and subsequently told Robinson that if B & F would continue hauling, Ashton would pick up the trucking bills, which procedure was followed.

At issue herein is Ashton's liability for trucking performed in June, July, and August, 1966, after the June Robinson-Ashton conversations and prior to their September conversations. The jury found for plaintiff and answered in the affirmative a special question as to whether Edward Ashton had authority to enter into the alleged June agreement with B & F.

Defendant first contends that plaintiff was allowed to prove a contract entirely different from the contract alleged in the bill of particulars and that it thereby proved a completely different cause of action. Defendant alleges that the language...