Taylor v. Morton B. Smith Co.

Appellate Terms of the Supreme Court of New York

Taylor v. Morton B. Smith Co.

148 N.Y.S. 148

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 18, 1914

StatusPublished

This text of 148 N.Y.S. 148 (Taylor v. Morton B. Smith Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Taylor v. Morton B. Smith Co., 148 N.Y.S. 148 (N.Y. Ct. App. 1914).

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Opinion

BIJUR, J.

Defendant, a dealer in old rails, purchased from plaintiff several quantities of such rails. Each order or contract contained a stipulation to the effect that the rails were to be usable, i. e., they were described as “relaying,” and that settlement was to be made “in accordance with facts shown by. written report on letter head of mill or other consignee at destination, such report to be best evidence without further proof or identification of quantity, quality, size, etc., of shipment, pursuant to which deductions or rejections shall be made.” There was a further provision: “The material purchased on this contract is subject to our inspection through mill or other consignee at destination.” The learned court below was of opinion that the reports thus offered in evidence were not competent as “not binding on the plaintiff,” because the orders or contracts did not disclose the name of any consignee or mill, but were for delivery f. o. b. cars at Garrison and Poughkeepsie, N. Y., respectively.

As I read these contracts, however, even without the elucidation offered by the testimony of plaintiff and defendant, it is quite evident that both parties understood that these rails were purchased by the defendant, a dealer in second-hand iron, for shipment to and use by various mills or consignees. The terms of the contract sufficiently designate such mill or other consignee, and the fact that the orders for shipment given by the defendant required plaintiff merely to deliver the rails f. o. b. cars, without naming the consignee, do not affect the validity of the agreement or its meaning. It is not disputed that the parties were at liberty to make such agreement as suited them governing the character or quality of evidence to be adduced regarding the goods covered by their agreement. I think that the reports offered in evidence by the defendant should have been admitted.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event; All concur.

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BIJUR, J.

Defendant, a dealer in old rails, purchased from plaintiff several quantities of such rails. Each order or contract contained a stipulation to the effect that the rails were to be usable, i. e., they were described as “relaying,” and that settlement was to be made “in accordance with facts shown by. written report on letter head of mill or other consignee at destination, such report to be best evidence without further proof or identification of quantity, quality, size, etc., of shipment, pursuant to which deductions or rejections shall be made.” There was a further provision: “The material purchased on this contract is subject to our inspection through mill or other consignee at destination.” The learned court below was of opinion that the reports thus offered in evidence were not competent as “not binding on the plaintiff,” because the orders or contracts did not disclose the name of any consignee or mill, but were for delivery f. o. b. cars at Garrison and Poughkeepsie, N. Y., respectively.

As I read these contracts, however, even without the elucidation offered by the testimony of plaintiff and defendant, it is quite evident that both parties understood that these rails were purchased by the defendant, a dealer in second-hand iron, for shipment to and use by various mills or consignees. The terms of the contract sufficiently designate such mill or other consignee, and the fact that the orders for shipment given by the defendant required plaintiff merely to deliver the rails f. o. b. cars, without naming the consignee, do not affect the validity of the agreement or its meaning. It is not disputed that the parties were at liberty to make such agreement as suited them governing the character or quality of evidence to be adduced regarding the goods covered by their agreement. I think that the reports offered in evidence by the defendant should have been admitted.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event; All concur.

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Bluebook (online)

148 N.Y.S. 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-morton-b-smith-co-nyappterm-1914.