Gibson v. Donnelly

New York Court of Common Pleas

Gibson v. Donnelly

13 N.Y.S. 808, 37 N.Y. St. Rep. 500, 1891 N.Y. Misc. LEXIS 1689

DecidedApril 6, 1891

StatusPublished

This text of 13 N.Y.S. 808 (Gibson v. Donnelly) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gibson v. Donnelly, 13 N.Y.S. 808, 37 N.Y. St. Rep. 500, 1891 N.Y. Misc. LEXIS 1689 (N.Y. Super. Ct. 1891).

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Opinion

Pryor, J.

In respect of counter-claims 3 and 4 it suffices to say that, since it is not apparent that the case contains all the evidence, we are precluded from the inquiry whether the proof was sufficient to sustain the verdict. Upon the evidence as given, however, the determination of the jury is not without adequate support. The first two counter-claims were rejected by the court as being invalid in point of law, and whether this ruling be tenable is the only question before us. These counter-claims stood upon a common ground, namely, that the plaintiff had contracted to deliver at a certain place; that instead he delivered at another place; and that by consequence the defendant sustained loss and expense. But the defendant never objected to this implied modification of the agreement; on the contrary, without a murmur he continued daily to receive the milk at the substituted locality for a period of five months, and even renewed the contract for another year, with a silent acquiescence in its changed conditions. The court below rightly held the appellant to an implied assent to a modification of the agreement. His contention that the change in the contract is invalid for want of consideration is plainly untenable. Tallman v. Earle, ante, 805, herewith decided. Judgment affirmed, with costs. All concur.

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Pryor, J.

In respect of counter-claims 3 and 4 it suffices to say that, since it is not apparent that the case contains all the evidence, we are precluded from the inquiry whether the proof was sufficient to sustain the verdict. Upon the evidence as given, however, the determination of the jury is not without adequate support. The first two counter-claims were rejected by the court as being invalid in point of law, and whether this ruling be tenable is the only question before us. These counter-claims stood upon a common ground, namely, that the plaintiff had contracted to deliver at a certain place; that instead he delivered at another place; and that by consequence the defendant sustained loss and expense. But the defendant never objected to this implied modification of the agreement; on the contrary, without a murmur he continued daily to receive the milk at the substituted locality for a period of five months, and even renewed the contract for another year, with a silent acquiescence in its changed conditions. The court below rightly held the appellant to an implied assent to a modification of the agreement. His contention that the change in the contract is invalid for want of consideration is plainly untenable. Tallman v. Earle, ante, 805, herewith decided. Judgment affirmed, with costs. All concur.

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Bluebook (online)

13 N.Y.S. 808, 37 N.Y. St. Rep. 500, 1891 N.Y. Misc. LEXIS 1689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-donnelly-nyctcompl-1891.