Schuchman v. Winterbottom

26 Jones & S. 105, 31 N.Y. St. Rep. 184

• Court: The Superior Court of New York City
• Decided: May 5, 1890
• Status: Published

Opinion

By the Court.—Sedgwick, Ch. J.

The action was for a balance of moneys to be paid to plaintiff by defendants under the provision of a contract. The contract was that the plaintiff should build certain vans and deliver them to defendants, for which the defendants were to pay certain sums. The defence was that the vans were not made in the manner provided by the contract. The respect in which they were claimed not to be in accordance with the contract was that the panels of the vans were not sufficiently thick or as thick as panels were ordinarily made for vans of such' a size. And on this ground the defendants claimed that the plaintiff had not shown performance on his part.

The testimony showed beyond doubt that the defendants had received the vans and had used them for a long time, and that they were still used without any return or offer to return. The conclusion from the testimony was that the defendants had accepted the vans, as built in accordance with the contract. Part of the testimony on this subject were certain entries in the defendants’ books in their business which were statements of the time when the vans were received. On the books, near these entries, were blue marks like checks. A witness who had made the entries was asked on behalf of defendants to explain these marks. The form of these questions was irregular and the overruling of them by the court was correct for that reason. But if the testimony, in explanation of which the questions were asked, was stricken from the case, the remainder of the evidence showed that the vans had been accepted without any claim by defendants that they did not fulfil the contract. Under these circumstances the plaintiff was entitled to payment of the contract price. Reed v. Randall, 29 N. Y. 358; Studer v. Bleisten, 115 lb. 325 ; Pierson v. Crook, lb. 547.

It is argued that this result is not a proper one here because the defect of which defendants complain was latent and not discoverable by a reasonable degree of observation at the time of the receipt of the vans or during a long time after. I do not think it is necessary to examine the law of the conditions claimed to exist, because it is in evidence from one of the defendants, that before the vans were completed he had- observed the manner in which they were built and specifically the thickness and construction of the panels.' That witness had been at plaintiff’s shop during the work. He was there every few days. He took charge of them personally. He made several complaints. He attended to the outside. He told the plaintiff that the panels ought to be put in lengthwise instead of up and down. 1 ‘ Q. In other words, the grain instead of running up and down should run lengthwise. A. Yes, sir, the panels should be made in one piece.” It is clear that the defendants retained the vans knowing the condition of the panels and their size.

The defendants could not assert that the vans were not in accordance with the contract, after the acceptance with knowledge of the facts, and were not entitled to any damages on account of the condition of the panels.

It is claimed that, it was error not to allow a witness who made the blue marks, that have been already referred to, to explain their meaning. The defendants for the purpose of establishing that they were entitled to an allowance of ten dollars a day for fifty-one days on account of delay in delivery under a provision of the contract, put in evidence their books which contained entries of the times of actual • delivery. On cross-examination, the witness who made the entries was asked, if the entry was made before the blue lines were, and the answer was in the affirmative, and long before. Upon this affirmation of the witness it was immaterial to ascertain what the meaning of the blue marks was.

The judgment is affirmed with costs.

Fbeedman and 0’Gorman, JJ., concurred.