Hellinger v. Marshall

92 A.D. 607, 86 N.Y.S. 1051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1904
• Status: Published

Opinion

Spring, J.:

I think the judgnient of the County Court should be reversed, and that of the justice affirmed.

The parties entered into a written agreement by which the plaintiffs were to advertise by cuts the hardware and bicycle business of the defendant. Four cuts were furnished gratuitously by the agent of the plaintiffs as samples. The hardware and bicycle business of the defendant were entirely distinct. Two of the cuts furnished represented the hardware business and two the bicycle business. The plaintiffs in pursuance of the contract commenced to send the cuts and continued to do so. Of these sent, by the stipulation of the parties it is conceded that only one represented the bicycle-business of the defendant. After a few months the defendant notified the ,plaintiffs that he would not receive any more of the cuts because they did not conform to the agreement in that they only advertised the hardware business. The plaintiffs1 sued to recover the contract price and, it was a question of fact for the jury to determine whether or not they were entitled to recover. The defendant was claiming that there was a breach of contract'in that-the cuts did not represent his bicycle business. The defendant was asked this ques ■ tion on the trial: “ What was the largest share of your business in -the village of Cazenovia ? ” This was objected to and the witness was permitted to answer and stated that it was the bicycle business. For this alleged error the County Court has reversed the judgment of the Justice’s Court in favor of the defendant. We think the evidence was competent. The defendant was seeking to show that the failure to supply cuts of his bicycle business was a material breach of the agreement and for the purpose of establishing that fact it was competent to prove that his bicycle trade was an important feature óf his business.

Note.—The rest of the cases of this term will be found in the next volume, 93 App. Div.— [Rep.

It is contended that there are other errors which justify the reversal although not alluded to by the county judge. Upon the trial the defendant was asked in substance if he had paid the plaintiffs for the cuts received by him under the written contract. This was objected to upon the ground that it was incompetent, immaterial and irrelevant. It was competent, material and relevant to show payment. There was no objection that the question called for a conclusion or that it was leading and, of course, the present respondents are limited to the grounds which they interposed as objections to the question. Again the defendant was asked if he had notified these plaintiffs that they had broken their contract. The same objections were interposed to this question. It was not objected that the notification was in writing or that it was a conclusion.

Considerable space is taken up in the respondents’ brief to show that the evidence relating to the breach of the contract was not admissible within the answer. This ground was not included among the objections upon the trial. So far as we are able to discover the case involved a fair question of fact before the jury in the Justice’s Court and their conclusion ought not to be disturbed.

The judgment of the County Court is reversed and that of the Justice’s Court affirmed, with costs of this appeal and in the County Court to the appellant.

All concurred.

Judgment of County Court reversed, with costs to the appellant, and judgment of the Justice’s Court affirmed, with costs in the County Court.