Keen v. Oxe

2 Rec. Co. Ct. 906

• Court: New York County Court, Suffolk County
• Decided: April 30, 1678
• Status: Published

Opinion

John Keen plaint, on appeale from the Judgemt of the Worppll Edwd Tyng Esqr agt Robert Oxe Defendt. . . . The Jury . . . found for the plaint. Revertion of the former Judgem* and costs of Courts. Tho: Lacey as Attourny of the Defend* appealed from the Judgemt of this Court unto the next Court of Assistants & gave Security for the prosecution thereof to Effect.

[This was an appeal from a Commissioner’s Court, in an action of debt of 2l for a disappointing barrel of anchovies. (Bill in S. F. 1707.3.)

S. F. 1707.2

John Keene his Reasons of Appeale from the Judgemts of the Worppll Edward Tyng Esqr dated the. 23th of Decembr 1677. @

Jmprs The now plaintife ownes that hee treated with mr Oxe but did not make a positive bargain about a small caske of Anchovis; which sd Keene would have paid for if good and Merchantable; but sd Oxe sent a caske to his house that was not good or Merchantable Therefore the now plaintife appeales to his Honorable Court for Judgement in the case, humbly conceiving that the Anchovis were not good and Merchantable or worth the money charged for, nor is the process legall being in mr Oxe his Name when hee Sweares it was in behalfe of his principall in England contrary to the Law page the Eight Sect, the 3d all which J leave to this Court and Jury, and remain yor Honors Servant to command.

John Keene

These Reasons of Appeale were Recd april: 25th 1678.

Edward Tyng

S. F. 1707.4

Robert Oxe his answer to John Keenes Reasons of appeale from the Judgemt of the Worppll Edward Tyng Esqt dated the. 23d Decembr 1677. @

J Answer that the bargain was firme & good between man and man, in that the now plaintife ordered the Sending of the sd Anchovis to his house which was performed in good order and welconditioned, otherwise why not returned when first received, there being no complaint made untill Severall months after, that they was bad and when they were so without doubt it was thrô his own carelesness in not lookeing after so perishing a Commodity, which will decay (wanting pickle in a few dayes, and whereas hee Sayes that the process is not legall is to bee admired considering that Judgement hath been given twice by the Worpll Edward Tyng for the Defendt it appearing as J suppose by the sd Defendts Leager that though the Anchovis was commission goods, yet hee had given the accot Credit for the very same barrell of Anchovis that the now plaintife had makeing the debt his own in so doing, having ballanced the Account and sent it with the produce of the goods home to his principall in England, not thinkeing it fit that the Accot should remain unballanced for Forty Shillings when it was in such Secure hands (as hee thought) as the now plaintifes, but there is few men which may not bee deceived as well as the Defendant, who trusting to finde mr Keen a just peaceable man, meetes in his roome a man of a turbulent Spirit, which had rather Spend (as J have heard him Say) Forty pounds, then pay this honest just forty Shillings debt; this J leave to the Juditious Judgemt of this Honord Court and Jury, Remaining

Yor Honors most humble Servt

Thomas Lacey attourny to Robert Oxe

Joseph Webb testified (S. F. 1707.5) that, encountering Keen,

... mr Oxe entred into discourse about the Anchovis they had a Sute of Law about, mr Keen said they were rotten and not good, mr Oxe owned hee did not looke into them, but as was usuall hee run down a stick amongst them, and said hee smelt of the Stick and it was Sweete, adding if it smel’t of the Anchovis then they were Sweete, if otherwise they were not good.

Oxe appealed from the County Court. His Reasons (S. F. 1732.4) contain little of interest but the following passages:

... J Aprahend that when Goods are Sould & Deliuerd that it cannot be in the Choice of the buier whether he will haue them or noe Thorow a dislike of ye Comodaty a Considerable time after Especially when the Goods are Damnified by ye buiers Carlsness if it be Soe then Adue to all Trade & Commerce in the world, but if the Goods be not Such as they were bought for why not Returne when first Receued that the now plentiue might haue made the best aduan[tage] of them, but he must be the Suffaror for others neglect.

Tbe gist of Keen’s reply (S. F. 1732.5) is in these paragraphs:

4ly Jf Mrchants at thire owne will & pleasure Send their Rotten Commodities to any mans house without his order or if they doe soe, them selfes aught to paye ye losse on booth parties, elce J must saye Adue to all such commerce. . . .

6ly Mr Oxe, pretends hee thrust a sticke into ye Anchovis, yt by ye smell of it hee might proue their Goodnes or sweetnes, but the jury by mind[ing] the euidence in the Case will finde a slate stone betwene ye drye Rotten Anchovis and ye [stice] Soe yt by yt proofe hee Could not haue the true Savour of them

James Butler testified as to the stick and stone, and Keen’s maidservant testified that the anchovies “was rustey and rotten that wee could not use them, but was forced to send for other anchov to use at a feast wee had presently” (S. F. 1707.6, 7).

Nevertheless the Court of Assistants, (Records, i. 124) reversed the former judgment and forced Keen to pay for the anchovies and 56s 10d costs.]