1 Barb. 165 | N.Y. Sup. Ct. | 1847
The plaintiff seeks, upon the common money counts, to recover against the defendants the proceeds of an alleged sale of certain axes, under the following circumstances. D. E. Stone & Co., on the 12th of May, 1837, made and delivered to the plaintiff an instrument in writing in these words:
*167 “ New-York, May 12, 1837.
Messrs. Jacot, Smith, Boyce & Jones,
Gent. Please deliver to Charles Burrall, jr. thirty-six dozen Stone & Co. axes.
(Signed,) D. E. Stone &. Co.”
On the face of this was written “ accepted,” and signed “ Jacot, Smith, Boyce & Jones—when called for.”
The firm of D. E. Stone & Co., at the date of this instrument, had from one to two hundred dozen axes deposited with the defendant, which they withdrew from the latter by orders at various times. In May, 1843, the plaintiff caused the order in question to be presented to the defendants, and a demand of payment to be made on them, in general terms. The defendants appeared to be surprised at the presentation of the order, and replied that they had not had any of that description of axes on hand for three or four years, and that their account with Stone & Co. was closed and had been settled for years, and it was their impression that this claim had been paid. The book-keeper of the defendants was called as a witness for the plaintiff, and testified that in the year 1837 the defendants were in the. habit of purchasing axes of D. E. Stone & Co. They never, to witness’ knowledge, sold those axes on commission ; they were not commission merchants. Sometimes Stone & Co. sent axes to the store of the defendant and stored them there until D. E. Stone & Co. could sell or dispose of them.
This is the substance of the plaintiff’s case. The defendant moved for a nonsuit, for several reasons; and among them, that the plaintiff could not recover under the common money counts. And the circuit judge nonsuited the plaintiff.
The acceptance of the order in question by the defendants, under the circumstances attending it, did not amount to a sale of the thirty-six dozen of axes to the plaintiff. There was no designation or setting apart of these axes from the one or two hundred dozen which the drawers of the order had at the time in the possession of the defendants. There was no delivery of
But even admitting that the acceptance of the order amounted to a transfer of the property, the plaintiff could not recover under the money counts. There was no evidence of a sale of the axes by the defendants. On the contrary, it appears that the axes of Stone & Co. were deposited with the defendants till the owners could sell them, and that the one or two hundred dozen on hand at the date of this order were all subsequently withdrawn from the defendants’ possession, by orders from Stone & Co., and the whole account was closed several years before the plaintiff presented his order, and demanded payment of the defendants. The idea that the defendants ever received any money, or any thing, for their axes, after the date of the order in question, is entirely negatived by the evidence in the case.
We are clear that the nonsuit was properly granted on the trial, and that the circuit judge erred in setting it aside.
Motion to set aside nonsuit denied.
