Quinby v. Carhart

• Decision Date: 26 April 1892
• Citation: 30 N.E. 972,133 N.Y. 579
• Parties: QUINBY v. CARHART et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 579

30 N.E. 972

QUINBY

v.CARHART et al.

Court of Appeals of New York.

April 26, 1892.

Appeal from superior court of New York city, general term.

Action by Charles J. Quinby against Edmund H. Carhart and others for an alleged violation on the part of defendants of an agreement to pay plaintiff's note. From a judgment of the general term affirming a judgment entered on a verdict for defendants, plaintiff appeals. Affirmed.

William P. Fiero, for appellant.

Ira D. Warren, for respondents.

EARL, C. J.

The sole question in this case is whether the plaintiff became legally bound to pay the defendants for goods shipped by them to a mercantile firm in Charleston, S. C., in the year 1884. Hecontends that he stood, at most, as a guarantor for the payment of the goods; and, as his agreement rested wholly in parol, he claims that it was void and not binding upon him under the statute of frauds. The defendants, on the contrary, claim that the goods were sold to him, and shipped at his request to the Charleston firm, and that, therefore, there was an original liability on his part to pay for the goods. The evidence in reference to the matter is very conflicting, and it is quite difficult to determine from it precisely what the truth is. The learned trial judge, in his charge to the jury, said: ‘I confess to you that the evidence is very conflicting. It is impossible to reconcile it. It is almost impossible to reconcile one witness' testimony,-some parts with others. But, such as it is, you must consider it, and try to come to some conclusion in the matter.’ But the issue between the parties is greatly narrowed by the allegation in the plaintiff's complaint that he ‘was a merchant, and in the habit of purchasing goods in the city of New York for the southern market, and for many years had purchased large quantities of goods on time from the firm of Whitford & Co., [the defendants,] and consigned the same for sale to parties in Charleston, in the state of South Carolina,’ and substantially that that course of business continued to March 5, 1884. These allegations were admitted by the answer, and there was oral evidence to confirm them. It must therefore be taken as established by the pleadings and proofs that for many years prior to the 5th day of March, 1884, the plaintiff purchased goods upon his own credit from the defendants, and shipped them to the Charleston firm; that he paid the defendants for such goods; that they allowed him a discount of 10 per cent. from the price of the goods; that he sold or consigned the goods to the Charleston firm and obtained reimbursement from it, with a profit of 10 per cent. He claims, and gave evidence tending to show, that, on the 5th day of March, he went to the defendants, and put an end to that arrangement; that he then paid them the balance due from him for goods thus sold and shipped to the 1st day of February, which, according to the prior arrangement, was one of the semi-annual pay days; and that he substantially notified them that he would no longer be responsible for goods shipped to the Charleston firm. This evidence on the part of the plaintiff the defendants contradicted by evidence on their part. They gave evidence tending to show that they did not on the 5th day of March receive any such notification from the plaintiff, and that the goods thereafter were shipped just as they had been before, and under the same arrangement. So we think the jury could find upon the evidence that the goods were sold to the plaintiff, and upon his credit.

The fact that the goods were charged to the Charleston firm on defendants' books is not conclusive against their claim that they were actually sold to the plaintiff. They gave some evidence tending to show that they were thus charged upon the plaintiff's request, and that, at some subsequent time, they were entered in the account against him by an...