Georgia Pine Turpentine Co. v. Newman

Appellate Terms of the Supreme Court of New York

Georgia Pine Turpentine Co. v. Newman

85 N.Y.S. 1055

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 7, 1904

StatusPublished

This text of 85 N.Y.S. 1055 (Georgia Pine Turpentine Co. v. Newman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Georgia Pine Turpentine Co. v. Newman, 85 N.Y.S. 1055 (N.Y. Ct. App. 1904).

Pincite

Opinion

GREENBAUM, J.

The action was brought to recover the purchase price of 845 sacks of coal which the plaintiff claims were tendered by it to the defendant under a written agreement between the parties, and which the defendant refused to accept. The chief defenses attempted to be litigated were, first, that the charcoal furnished was not of the quality provided for by the contract; and, secondly, that the plaintiff sold the charcoal in the city of New York in violation of the terms of the contract. The charcoal proffered by plaintiff had not been examined by the defendant. The justice before whom the case was tried, in charging the jury with reference to the first defense, that the goods were not of the quality agreed upon between the parties, first instructed them that they were not to consider certain evidence which had been taken as to the quality of charcoal delivered under a previous contract between the parties. With that testimony out of the case, there was no proof that the rejected goods were not of the quality agreed upon, and yet the jury were subsequently told that if they believed that the charcoal tendered was of an inferior quality of pine wood charcoal, they may take that into consideration in arriving at a verdict. With respect to the second defense—as to the sale of charcoal to other persons than the defendant within the city of New York—the court first instructed the jury that there was no evidence (as in fact there seems to have been none) that any such sale was made prior to the day when the defendant rejected the charcoal in suit, and thereafter instructed the jury that, if they found that such sale to third parties was made prior to the rejec[1056]*1056tion, they may take that into consideration. There were other inconsistencies in the charge, which it is unnecessary to indicate. So far as the record shows, the plaintiff would have been entitled to a judgment without the submission of any fact to the jury. The case presents such irreconcilable and contradictory statements of the court in the charge that, notwithstanding the omission of plaintiff’s counsel to note any objections thereto, we think that the exceptional situation disclosed warrants this court, in the interest of justice, to order a new trial.

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

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GREENBAUM, J.

The action was brought to recover the purchase price of 845 sacks of coal which the plaintiff claims were tendered by it to the defendant under a written agreement between the parties, and which the defendant refused to accept. The chief defenses attempted to be litigated were, first, that the charcoal furnished was not of the quality provided for by the contract; and, secondly, that the plaintiff sold the charcoal in the city of New York in violation of the terms of the contract. The charcoal proffered by plaintiff had not been examined by the defendant. The justice before whom the case was tried, in charging the jury with reference to the first defense, that the goods were not of the quality agreed upon between the parties, first instructed them that they were not to consider certain evidence which had been taken as to the quality of charcoal delivered under a previous contract between the parties. With that testimony out of the case, there was no proof that the rejected goods were not of the quality agreed upon, and yet the jury were subsequently told that if they believed that the charcoal tendered was of an inferior quality of pine wood charcoal, they may take that into consideration in arriving at a verdict. With respect to the second defense—as to the sale of charcoal to other persons than the defendant within the city of New York—the court first instructed the jury that there was no evidence (as in fact there seems to have been none) that any such sale was made prior to the day when the defendant rejected the charcoal in suit, and thereafter instructed the jury that, if they found that such sale to third parties was made prior to the rejec[1056]*1056tion, they may take that into consideration. There were other inconsistencies in the charge, which it is unnecessary to indicate. So far as the record shows, the plaintiff would have been entitled to a judgment without the submission of any fact to the jury. The case presents such irreconcilable and contradictory statements of the court in the charge that, notwithstanding the omission of plaintiff’s counsel to note any objections thereto, we think that the exceptional situation disclosed warrants this court, in the interest of justice, to order a new trial.

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

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Bluebook (online)

85 N.Y.S. 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-pine-turpentine-co-v-newman-nyappterm-1904.