Pollock v. Ehle

2 E.D. Smith 541

• Court: New York Court of Common Pleas
• Decided: December 15, 1854
• Status: Published

Opinion

By the Court. Ingraham, First J.

The action was for goods sold and delivered. The defendant, Ehle, answered the complaint by a general denial, except in reference to nineteen barrels of lime, for which he admitted his indebtedness as charged in the complaint. He also set up as a bar to the action, the acquirement by the plaintiff, under the mechanics’ lien law, of a lien for the same claim. The evidence established a sale and delivery, upon the orders of both defendants, of the articles for which the plaintiff claimed payment, also the subsequent presentation of a bill, and the promise of both defendants to settle it. The interest which had accrued upon the account since it was presented to the defendants and acknowledged to be correct, was proved by one of the witnesses. The account, when presented, was made up with interest to the day of the presentment.

The facts proven were fully sufficient to warrant the judgment, and there is no ground for sustaining the appeal.

The return does not show that any evidence was objected to, except as to interest. This was properly allowed. A sale of goods, unless the giving of a credit is proven, is presumed to be for cash; and after a bill is presented, in which interest is charged and the debtor promises to pay it, the allowance of interest down to the time of the trial is proper.

The justice was right in refusing "to adjourn, to allow the •defendant to obtain testimony. The defendant should have been prepared for trial at the time, or if he had any ground for postponement, he should have applied for it before commencing the trial. Besides, the evidence he wished to procure, would furnish no defence to the action, and should have been excluded if offered.

The judgment should be affirmed.