Coons v. Sanguinetti

Appellate Division of the Supreme Court of New York

Coons v. Sanguinetti

86 N.Y.S. 367, 90 A.D. 615

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 16, 1904

StatusPublished

This text of 86 N.Y.S. 367 (Coons v. Sanguinetti) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coons v. Sanguinetti, 86 N.Y.S. 367, 90 A.D. 615 (N.Y. Ct. App. 1904).

Pincite

Opinion

CHESTER, J.

The action was brought to recover for an amount remaining unpaid upon a piano contract between the defendant and one Mary E. Tietz which had been transferred to the plaintiff’s testator, Derrick G. Golder. The amount claimed'in the complaint to be due was the sum of $201.87, besides interest.

The court directed a verdict for the plaintiff for the full amount claimed. In the answer it was alleged that there had been an account stated between the defendant and Golder under the contract in question, under which a balance of only $75 was due from the defendant thereon, and it was also alleged “that the entire amount of said contract had been paid, except seventy-five dollars.”

The evidence given in support of the defendant’s allegation of an account stated was all given by defendant’s wife, and was to the effect that there had been a dispute between the parties over the amount due; that the defendant claimed it was only from $50 to $60, and Golder that it was over $100; that the defendant offered to pay $75 to settle when Derrick brought a receipt to defendant’s wife; that he never [368]*368brought such receipt; and that the defendant never paid the money. This evidence shows an unsuccessful effort to compromise the claim rather than an adjustment of the accounts that could fairly be regarded as an account stated.

But under the allegation of payment a different situation is presented. The defendant’s wife testified in his behalf that Golder had said upon the occasion when they were having the dispute over the amount due on the contract that the amount unpaid was $75. This testimony was entirely undisputed by any direct evidence. It is true that she made a statement inconsistent with this when she testified that he said that the amount due on the contract was over $100. It is true also that she was the wife of the defendant, and testified in his behalf to a conversation-with a deceased person. While these facts required that her testimony should be carefully scrutinized, it was for the jury to determine what, if any, weight should be given to it. With her evidence in the case there was a clear question of fact for the jury to determine as to whether or not all but $75 of the contract had been paid, and the direction of a verdict for the plaintiff for the full amount claimed was error which requires reversal.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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CHESTER, J.

The action was brought to recover for an amount remaining unpaid upon a piano contract between the defendant and one Mary E. Tietz which had been transferred to the plaintiff’s testator, Derrick G. Golder. The amount claimed'in the complaint to be due was the sum of $201.87, besides interest.

The court directed a verdict for the plaintiff for the full amount claimed. In the answer it was alleged that there had been an account stated between the defendant and Golder under the contract in question, under which a balance of only $75 was due from the defendant thereon, and it was also alleged “that the entire amount of said contract had been paid, except seventy-five dollars.”

The evidence given in support of the defendant’s allegation of an account stated was all given by defendant’s wife, and was to the effect that there had been a dispute between the parties over the amount due; that the defendant claimed it was only from $50 to $60, and Golder that it was over $100; that the defendant offered to pay $75 to settle when Derrick brought a receipt to defendant’s wife; that he never [368]*368brought such receipt; and that the defendant never paid the money. This evidence shows an unsuccessful effort to compromise the claim rather than an adjustment of the accounts that could fairly be regarded as an account stated.

But under the allegation of payment a different situation is presented. The defendant’s wife testified in his behalf that Golder had said upon the occasion when they were having the dispute over the amount due on the contract that the amount unpaid was $75. This testimony was entirely undisputed by any direct evidence. It is true that she made a statement inconsistent with this when she testified that he said that the amount due on the contract was over $100. It is true also that she was the wife of the defendant, and testified in his behalf to a conversation-with a deceased person. While these facts required that her testimony should be carefully scrutinized, it was for the jury to determine what, if any, weight should be given to it. With her evidence in the case there was a clear question of fact for the jury to determine as to whether or not all but $75 of the contract had been paid, and the direction of a verdict for the plaintiff for the full amount claimed was error which requires reversal.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

86 N.Y.S. 367, 90 A.D. 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coons-v-sanguinetti-nyappdiv-1904.