Dudley v. Perkins
| Decision Date | 17 April 1923 |
| Citation | 235 N.Y. 448,139 N.E. 570 |
| Parties | DUDLEY et al. v. PERKINS et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Egbert H. Dudley, and others against Evelina B. Perkins and others, as executors of George W. Perkins, deceased. Plaintiffs had judgment at Trial Term (202 App. Div. 824,194 N. Y. Supp. 930), and from modification of the judgment by the Appellate Division striking out additional allowance of costs, and from reduction of judgment on their stipulation, they appeal, and from that part of the judgment of the Appellate Division modifying and as modified affirming judgment of the Trial Term, defendants appeal.
Reversed, and new trial granted on defendants' appeal, and plaintiffs' appeal dismissed.
Appeal from Supreme Court, Appellate Division, Fourth department.
Ernest E. Cole, of Bath, and James O. Sebring, of Corning, for plaintiffs.
Herbert A. Heminway, of Corning, for defendants.
George W. Perkins, in the spring of 1917, made 485 written contracts with farmers in Steuben county whereby they agreed to raise potatoes, and he agreed to purchase their crop at $1 per bushel, delivered at railroad stations. In the fall of 1917 Mr. Perkins sent his assistant, John W. McGrath, to Bath to find some one to handle and ship the potatoes he had purchased. He saw Egbert H. Dudley, one of the plaintiffs, who, with his brother, the coplaintiff, were produce dealers, engaged in buying and selling potatoes at railroad stations where the potatoes were to be delivered. The result of this interview was the execution of a contract by Mr. Perkins and plaintiffs for the handling of the potatoes which Mr. Perkins had contracted for.
The material parts of the contract were:
That plaintiffs, parties of the second part, should sort, grade, load, and ship the potatoes delivered by the various growers who had contracted with Mr. Perkins, party of the first part. That they should ‘guarantee that said potatoes as received at the several stations and as shipped by them to the party of the first part shall be of full weight as shown by the records of the parties of the second part as having been received and receipted for by said parties of the second part to the growers of said potatoes with not more than a 2 per cent. shrinkage from said shipments of potatoes upon their arrival at their destination, namely, the city of New York or elsewhere. That all of the said potatoes as received and shipped by the said parties of the second part be strictly in accordance with the contracts made between the party of the first part and the growers of said potatoes, and, in particular, that said potatoes shall be ‘Marketable,’ free from mechanical or other injury, disease, scab or second growth or other defect that would render them unsalable, and must be of sufficient size not to pass through a sieve with a mesh of 1 7/8 inches, and that any and all of the potatoes shipped by the parties of the second part to the party of the first part, to the city of New York or elsewhere, which are not according to the requirements or standard as herein set forth, or as mentioned in said contracts made between the parties of the first part hereto and the growers of said potatoes, shall be chargeable to the parties of the second part for all defects as to quality or short weight or otherwise.
‘Parties of the second part agree to furnish all the necessary labor incident to the work of grading, sorting, sacking, loading and shipping of said potatoes at their own cost and expense.
‘That the said parties of the second part shall pay for the potatoes as delivered to and received by them at the various places or stations as mentioned in this contract, and when same are ready for shipment, and have been fully paid for upon the terms and conditions and at the price as set forth in the agreements between the party of the first part and the growers of said potatoes, and not otherwise, then, and in that event, the said parties of the second part shall draw upon party of the first part for the necessary funds to cover the amount as expended by them, the form and manner of payment and the place where same shall be made to be as may be agreed upon between the parties to this agreement.
* * *
‘In witness whereof the parties hereto have hereunto set their hand and seal, the 29th day of September, 1917.
‘E. H. Dudley & Co.,
Plaintiffs received some potatoes from the growers, shipped them to New York, and advanced some money to pay for them. Their bill therefor, after crediting some payments made thereon, charging for their services at the rate of 5 1/2 cents per bushel, and making no claim for the one-half cent bonus, amounted to $2,724.82, for which they brought suit. Defendant answered, denying performance of the contract, and setting up counterclaims for shortage and other deductions.
The action was tried twice. On the first trial a verdict for $884.10 in favor of plaintiffs was set aside by consent of both parties. Thereafter Mr. Perkins died, and his executors were substituted as defendants. On the second trial plaintiffs had a verdict for $1,943.57. From the judgment entered thereon plaintiffs accepted a deduction of $275 as the alternative of a new trial, which represents damages on potatoes purchased by Mr. Perkins from two growers which plaintiffs failed to sort and ship with priper diligence.
The unanimous affirmance, except as to the $275 item, relieves the court from the necessity of reviewing the voluminous record of the evidence to ascertain whether it supports the verdict, but certain assignments of error in the reception and exclusion of evidence and in the judge's charge require our attention.
[1] Mr. Perkins was a man of large wealth. He was not in the potato business for gain. He was a banker and...
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