Butcher v. Consolidated Trust Co.

44 A.D. 370, 60 N.Y.S. 915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1899
• Status: Published

Opinions

Ingraham, J.:

The action was brought to recover for goods sold and delivered by the plaintiff, as receiver, to the defendant. The complaint alleges “ that at the time next hereinafter mentioned the plaintiff, as such receiver, at the special instance and request of said defendant, sold and delivered to said defendant certain goods, wares and merchandise of the kind and value and agreed price, to be paid therefor by said defendant in cash, as follows : ”, The answer denies each and every allegation of the complaint, and then “ for a separate and second amended answer and defense and by way of set-off and counterclaim, the defendant alleges that the goods, wares and merchandise alleged to have been sold by plaintiff to defendant were manufactured by plaintiff upon order of defendant,” then alleging a warranty by the defendant as to the character of the goods, a breach of such warranty, by reason whereof the.said furniture became unfit for use, to the loss'of the defendant in the sum of $500; and for a third defense of the defendant alleged that upon discovering the defects in said furniture, it gave notice to the plaintiff of the condition of the furniture and offered to return the same to the plaintiff and that the plaintiff refused to accept the same.

The general denial in the answer put in issue all the allegations in the complaint not specifically admitted, and there was no allegation in the answer which could be considered as an admission of the'allegation of the complaint that the goods, wares and merchandise therein described were of any value, or that there was an agreed price to be paid therefor. Upon the trial there was no evidence to prove either the sale or delivery of the furniture by the plaintiff to the defendant; nor was there any evidence as to an agreed price for which these goods were sold,- or that the goods sold and delivered ■ were of any value. To entitle the plaintiff to a verdict under the pleadings he was required either to prove that the defendant agreed to pay a specific price for the goods ordered and delivered, or the. fair value thereof, and in the absence of such proof the plaintiff was not entitled to a verdict for more than nominal damages. The.direction of a verdict, therefore, at the end of the case for the plaintiff for the sum of $565.59 was entirely unsupported by any evidence, and to the direction of a verdict for that amount, .the defendant’s exception was well taken.' The verdict as directed by the court being thus entirely without evidence to support it, the judgment must be reversed' and a new trial be granted, with cost to the appellant to abide the event.

Van Brunt, P. J., Rumsey and McLaughlin, JJ., concurred.