Mead v. Bell

54 N.Y.S. 756, 35 A.D. 627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1898
• Status: Published

Opinion

HARDIN, P. J.

Upon the trial there was a dispute as to whether the defendant executed the agreement which was produced by the plaintiff at the trial. There was positive evidence given by the plaintiff, as a witness, and by the justice of the peace before whom the cause was tried, to the effect that the defendant ■executed the agreement in question. Although, upon the trial now under review, the defendant denied the execution of the agreement, the question of fact was submitted to the jury as to whether -or not she had executed the agreement,- and the verdict was in favor of the position taken by the plaintiff that the defendant executed the agreement for the articles mentioned in it. The verdict seems to be in accordance with the weight of the evidence in that regard. The articles mentioned in the agreement were delivered to the defendant upon her premises in the town of Fleming. The agreement provided for the delivery to be made in October or November, 1897. The delivery was made in accordance with the stipulation of the agreement. It contained a provision on the part of the defendant that she would pay on delivery $112 in cash. Her signature was below the clause agreeing to make the payment as stated. We think no question was raised at the trial which calls upon us to consider the statute of frauds, as it has no bearing upon the case in hand. There was some evidence upon which the jury might have found that she acquiesced in the delivery of the property in pursuance of the agreement. See folio 32. It is not perceived that the exceptions taken during the progress of the trial present any prejudicial error requiring us to interfere with the verdict.

Judgment and order affirmed, with costs. All concur.