11 N.Y.S. 565 | Superior Court of Buffalo | 1890
The substantial facts upon which the judgment in this action is based, are conceded. Plaintiff is a dealer in engine supplies, and defendant is the proprietor of a steam planing-mill. On February 16, 1888, plaintiff was informed by a person in his employ that the engineer of defendant’s mill had ordered some packing, and thereupon he filled the order, and delivered the packing at defendant’s mill, leaving it in the engine-room. Two or three months after, plaintiff sent by mail a bill of the packing to defendant, which he received, but gave it no attention. Subsequently, three or four other bills were in like manner sent and received, and met with like treatment. On February 2, 1889, defendant called upon plaintiff, and inquired who gave the order for the packing; refused to take or keep it; and requested its removal. Subsequently defendant sent the packing to plaintiff, who returned it. Defendant did not discover that the packing was at the mill until about the time he called upon plaintiff. The parties never had any previous dealings, and defendant did not authorize his engineer or any one else to order the packing. When discovered, none of the material had been used; but when sent back, it was in poor condition. At the close of plaintiff’s proof, defendant moved for a nonsuit, which was denied. The court below based its judgment upon the theory of an account stated, and permitted an amendment of plaintiff’s pleading in order to authorize it. It was not claimed upon the argument, and could not be with success, that the order by the engineer, and delivery of the goods to him at the mill, created any liability against the defendant. The parties were strangers. No dealings had ever been had. Plaintiff did not know in fact who gave the order, or whether the person ordering had authority or not. The defendant had given no authority to make the purchase, nor had he clothed the engineer or other person with apparent authority to make it. Clearly, then, when the packing was delivered, no liability was created against the defendant, and consequently there was at this time no debt upon which an account could be rendered. If liability was created, we must seek for it in subsequent acts; and' this brings us to a consideration of the question, can a liability be created by rendering a claimed statement of account, when in fact no debt exists? To my mind, it seems clear that a negative answer must be returned. The authorities say that it takes two parties to make an account stated,—a debtor and a creditor. Stenton v. Jerome, 54 N. Y. 484. In Volkening v. De Graaf, 81 N. Y. 268, Judge Folger says: “The emphatic words of a count,’ upon an account stated were, in former days, insimul computassent, that ‘ they [the plaintiff and defendant] accounted together.’ And the count went on to say that on such account
The claim is however made that defendant is estopped from denying liability, for the reason that the notice imposed the obligation of inquiry to discover if the goods had been delivered, and for his failure the plaintiff has suffered injury. It was said by Selden, J.: “The parties are never precluded from giving evidence to impeach the account, unless the case is brought within the principles of ail estoppel in pais, of an obligatory agreement between the parties, as, for instance, where, upon a settlement, mutual compromises are made. ” Lockwood v. Thorne, 18 N. Y. 292. It is readily seen that thére is here presented nothing upon which an estoppel can be based. Defendant was guilty of no negligence in connection with the ordering of the goods. Ho obligation rested upon him to take active efforts to discover whether the goods were upon his premises or not. As was said by Earl, J.; “Here there was no negligence of Raines in clothing Plielps with apparent, authority to indorse, or in causing or permitting any appearances which caused the defendant to rely upon the indorsements. The negligence alleged is simply that Raines did not use ordinary care to discover and prevent the frauds of Phelps; and there is no authority for holding that such negligence can work an estoppel. If it could, merchants, bankers, and other business men having numerous clerks, would hold their - property by a precarious ten