Smith v. Leland

2 Duer 497

• Court: The Superior Court of New York City
• Decided: December 10, 1853
• Status: Published

Opinion

By the Court.

We are of opinion that the order made by our brother Paine, setting aside the report of the referee, must be affirmed, with costs, and this, not only upon the ground upon Which he has rested his decision, but also upon that in respect to which he has merely stated the inclination of his opinion. The Code requires that all the facts constituting the cause of action, must be set forth in the complaint, and the definition embraces all material and issuable facts; all that the plaintiff must prove upon the trial to entitle him to recover. When goods sold, are delivered to a third person for the exclusive use of such person, his authority to receive them, and their delivery to him, are material and issuable facts, which the plaintiff', in an action against the purchaser, is bound to prove upon the trial, and is therefore bound to aver in the complaint. Here the complaint neither avers the authority of Mrs, Ridds to receive the goods, nor their delivery to her, and the evidence bearing upon these facts which was given before the referee, is not only most unsatisfactory in itself, but under the complaint as framed, ought not to have been admitted. It is true that the delivery of goods sold to a third person for the use of such person, under an- authority from the purchaser, is, in judgment of law, a delivery to such purchaser; but it is so, not as a fact, hut as a conclusion of law, and we have repeatedly held that they are the facts from which the proper legal conclusions may be drawn, and not the conclusions themselves, that must be stated in the complaint.

We do not think that we are concluded by the finding of the referee upon the main question, whether Mrs, Hidds was authorized by the defendant to purchase the goods in his name. Her testimony is not merely suspicious in itself, hut she was materially contradicted by the witness Wilson, as well as by Mr. Lawton. Giving to the finding of the referee the same effect as to the verdict of a jury, we think it may he properly set aside, as against the weight of evidence.

Order appealed from affirmed, with costs, and rule for a reference vacated.