Alvord v. Baker

9 Wend. 323 | N.Y. Sup. Ct. | 1832

By the Court,

Sutherland, J.

The payment of the las8 order was proved. There was no evidence of the payment of the first, except the fact that it was in possession of the plaintiff*, and that the giving it was admitted by the defendants j this, I think, \s prima facie sufficient. Orders for goods in the hands of the drawee are evidence of goods sold to the drawer, and delivered to the payee at his request. In this respect they differ from orders for the payment of money, which are presumed to be drawn, nothing appearing to the contrary, upon funds in the hands of the drawee ; and if paid, give no cause of action against the drawer, unless that presumption is rebutted by other evidence.

The only question here is, whether the evidence, or circumstances of the case justify the conclusion, that these orders were credited to the plaintiff in part payment of the defendants account, in the settlement which took place on the I2th December, 1830. G. W. Worden, in whose favor the large >t order was drawn, testified that when presented to the plaintiff, he said he would accept it, for he was owing the defendants. This shows that he expected and intended to apply it on the defendant’s account against him.

The defendants produced their books containing an account against the plaintiff for blacksmith work, done previously to the 20th September, 1830, for $30,18. The plaintiff admitted the account, but said he had paid it and had the defendant’s receipt, which he produced. This receipt shows that only $12 were paid to the defendants at that time, although the receipt is in full of all book accounts for blacksmith work up to the 20th September, 1830, and bears datethe 12th December of that year. Now, without any further explanation whatever, I think a jury might infer from these circumstances that these orders were credited to the plaintiff in the settlement of the defendants’ account. For although the amount of the order and the payment does nut precisely coincide with the defendants’ account, the difference is not large. This undoubtedly was the conclusion to which the justice came, who stood in the place of the jury; and that judgment having been reviewed and affirmed by the court of common pleas, I think, considering the trifling nature of the case, and the amount involved, we ought not now to reverse it.

Judgment affirmed.