Robinson v. Miller

1 N.Y. St. Rep. 771

Opinion

Dykman, J.

This action was brought for the recovery of a quantity of brick sold and delivered to the defendant by the plaintiff. The defense was that the brick was delivered under a contract to deliver 100,000 brick at five dollars a thousand ; that only 56,925 had been delivered, and no recovery could be had because the contract was an entire contract, and had been violated by the failure and refusal of the plaintiffs to perform the same by the delivery of the full amount required thereby. Both parties introduced testimony tending to establish their respective theories, and the case was fairly delivered to the jury under a charge, to which no objection was taken. The jury found for the plaintiff for the full amount claimed, with interest, and we must now assume that the testimony on the part of the plaintiff was true, and that there was no contract for the delivery of any specified quantity of brick. The 'verdict was entirely justified by the testimony, and the judgment and order denying a new trial should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.