Hull v. Littauer

Citation57 N.E. 102,162 N.Y. 569
PartiesHULL v. LITTAUER et al.
Decision Date01 May 1900
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Third department.

Action by James Hull against Lucius N. Littauer and another to recover the purchase price of leather sold and delivered by plaintiff to defendants. From the affirmance (40 N. Y. Supp. 338) of a judgment in favor of defendants, entered on a verdict directed by the court, plaintiff appeals. Affirmed.

WITNESSES-PARTIES-CORROBORATION-DIRECTING VERDICT.

In an action to recover for goods sold, defendant alleged that the contract was an entire one, and that plaintiff had failed to deliver all the goods which he had contracted to deliver, and that, therefore, defendant was not liable. Plaintiff rested, after stating the quantity delivered, and the price, without testifying as to the original contract. Defendant testified to the entirety of the contract, and his evidence was uncontradicted, and was corroborated in part by an employé of plaintiff and by circumstantial evidence. Held, that as the evidence for defendant was uncontradicted, and was not, from its nature, unreasonable, it was proper to direct a verdict for the defendant, though the evidence in his favor was substantially that of one of the parties in interest.

Clark L. Jordan, for appellant.

Edgar A. Spencer, for respondents.

GRAY, J.

The issue between the parties was whether there had been an entire contract for the sale of 20,609 feet of a certain description of dressed leather, known as ‘yellow kip,’ as alleged by the defendant in their answer to the complaint. The plaintiff had sued the defendants as upon a sale and delivery to them, at the agreed price of seven cents per foot, of the leather which he had on hand at a certain date, amounting to 15,164 feet. If the agreement for the sale of the leather was as claimed by the defendants, then the failure to perform it by the delivery of the full amount was a perfect defense to the action. If there had been one bargain between vendor and purchaser for the sale and delivery of 20,609 feet of leather, then no right of action accrued to the former for the price, until he had fully performed on his part. Upon the trial the plaintiff testified that, as agent for the Western Tannery Company, he had delivered to the defendants, at their factory in Gloversville, 15,164 feet of this description of leather, at seven cents a foot. This price for the leather he proved by stating what one of the defendants had, upon a previous trial of the action, testified to as the price agreed upon with Tolman, the manager of the Western Tannery Company. Having testified to the delivery of the leather, to the price per foot, and to the assignment to him by the tannery company of its claim against the defendants, the plaintiff rested his case. For the defendants, one of them testified that he had looked over a quantity of the leather which Tolman had at the plaintiff's storehouse, in Gloversville, and that when, subsequently, Tolman called upon him in New York, and desired to sell the lot, he agreed to purchase it. He said that at the time Tolman showed him two papers, which were in this plaintiff's handwriting; one of which was a letter from plaintiff to Tolman, referring to a memorandum inclosed of the amount of leather on hand, and the other was the memorandum, showing the number of feet of leather in detail. Tolman called off the number of feet, and witness made a memorandum of them, aggregating 20,609 feet, and of the price, being seven cents per foot, which the former pronounced correct. A week later, when in Gloversville, the witness Littauer said that he found that a portion, only, of the leather had been delivered at his factory. He thereupon demanded of plaintiff the delivery of the balance of the skins which he had bought; but he was told that it was all that he would get. The defendants subsequently wrote to the plaintiff that as his delivery of the leather was short by upwards of 5,000 feet of the amount of their purchase, they had notified his principal of the fact, and that Tolman, in reply, had stated that he had ordered the delivery of all the skins which had been sold; and they declined to pay a bill which plaintiff had rendered them until the matter was adjusted. The superintendent of the defendants testified to receiving a letter from them, after their transaction with Tolman, and to showing it to him at the plaintiff's storehouse in Gloversville, and that, after calling his attention to the number of feet of leather stated as sold, he replied, ‘Yes; that is right; they are over there.’ A witness for the defendants, who had been bookkeeper for the plaintiff at the time, testified that there were about 20,000 feet of the leather in the plaintiff's...

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