63 How. Pr. 336 | New York Court of Common Pleas | 1882
Many items in dispute between the parties depended for disposition upon conflicting evidence. From examination it may be added that in each case the testimony was so nearly balanced as not to call for interference by an appellate court with the referee’s conclusions. In the disposition of others, legal questions are involved, which in addition to the exceptions, merit the attention of this court, and will be briefly considered in the order presented by the brief of the learned counsel for the appellant.
The first is an interest charge made by the defendant against the plaintiff, disallowed by the referee. The dealings between the parties were under a written agreement, whereby the plaintiff was to purchase goods from the defendant, being allowed a specified discount and the privilege of exchanging any of his purchases at any time. This plan of business, involved what properly may be called an open or running account. There was no final settlement or adjustment at any time prior to the close of the trial. The agreement contains' no clause relating to interest, and under its terms the plaintiff did not stand with the defendants in the position of an ordinary purchaser. He was entitled to exchange goods, and was given by the defendant an exclusive agency, subject to the conditions in the written instrument. It would be an injustice to charge the plaintiff with a liability to pay interest, when not mentioned in the contract, or subsequently clearly agreed upon, or chargeable by law. There appears not to-have been any after agreement affecting this question, and the account being one for merchandise and unliquidated,, interest was properly disallowed (Liotard agt. Graves, 3 Caines, 226; Newell agt. Griswold, 6 Johns., 45; Reid, Administrator, etc., agt. The President, etc., of Rensselaer' Glass Factory, 3 Cowen, 393; Smith agt. Viele, 60 N. Y., 106.)
The next item is an amount arising from payment by the defendant on a claim of general average upon goods, returned by the plaintiff for exchange. The correspondence-
The exceptions by defendant taken to the admission of testimony claimed to vary the written agreements are rendered immaterial by the proceedings on the trial. The contention was narrowed to the validity of certain items in each account, and the evidence admitted under the exceptions had no relevancy to or effect upon the contention thus made. In this view they furnish no sufficient ground for reversing the judgment.
’The exceptions at folio 186 and 416 are not tenable, because it was competent for the plaintiff to recover any item of his account established by an independent agreement between the
These suggestions, it is believed, cover all exceptions to which our attention has been directed by the learned counsel for the appellant.
From a review of the somewhat voluminous record, no error is found, save the disallowance to the defendant of the item of January 27, 1874, $281.54, by which amount the judgment should be reduced.
The judgment should be reversed, with costs, unless the plaintiff reduce same $281.54, and if so reduced should be affirmed, without costs.