7 N.Y.S. 220 | N.Y. Sup. Ct. | 1889
A recovery was had by the plaintiff upon a cause of action arising upon an order made by the agent or foreman of the defendant for the purchase from the plaintiff of a quantity of barley. The plaintiff brought a load of such barley to the defendant’s malt-house on the 12th day of October, 1878, and received from the man in charge the following memorandum: “C. F. M. House, October 12. Bought barley of R. Gilbert at market price. 90 bushels, 33-49. Ed. Seitz.” The barley represented by this receipt was actually delivered by the plaintiff to the defendant and received by the latter, and retained by him and used in his business. Though the complaint is framed so as to cover another quantity of barley which was never actually received by the defendant, yet upon the trial such additional cause of action seems to have been abandoned, and the case was, apparently by the consent of the plaintiff’s counsel, submitted to the jury by the learned court solely upon the claim for this 90 and 33-49 bushels. The question upon this appeal is whether or not there was sufficient evidence of the market price to warrant the rendition of the judgment.
All concur.