64 Barb. 573 | N.Y. Sup. Ct. | 1873
This action is brought to recover an alleged balance of account. The defendant is a man of some property, residing in Watertown, and has been subject for many years to occasional fits of intoxication, lasting one or two months. The plaintiff keeps a tavern in the neighborhood of the defendant’s residence. The defendant, it appears, has been in the habit of resorting to the plaintiff’s tavern when under the influence of these periodical fits of intoxication, and purchasing and drinking intoxicating liquors on credit, by means of which his intoxication was continued, and he has from time to time paid to the plaintiff considerable sums of money in payment of indebtedness alleged to have been incurred at such times.
In the latter part of May, 1870, the defendant commenced one of his “sprees,” as they are termed in the evidence, which lasted about forty days, more or less. According to the plaintiff’s account, the defendant came to his tavern on the 27th or 28th of May, 1870, in a state of partial intoxication, and wanted some whisky, which the plaintiff refused to let him have until he had paid a balance claimed by the plaintiff to be due him for liquor furnished while the defendant was on a previous spree, earlier in the spring. The items of the former account do not appear. The plaintiff alleges it was kept only on a slate, and effaced at the time it was paid. The plaintiff thereupon drew a check for $128, the alleged balance of the old account, and the defendant signed it, and the plaintiff presented it to the bank on which it was drawn, and received payment, and thereafter the defendant continued to procure and drink liquor at the plaintiff’s bar, occasionally inviting others to partake, and sometimes taking some home with him, until some time in the month of July. The defendant being for most of the time in a state of delirious and almost helpless intoxication.
During this time the plaintiff obtained a large sum of
The account is thus entered on a book kept by the plaintiff, and on the next page of the same book is a credit account, as follows, viz:
It seems, that during the running of this account, the plaintiff advanced, on account of the defendant, and at his request, the sum of $19 to take up a check drawn by the defendant and held by one Bates. The plaintiff received the money on the various checks credited to the defendant by him, and sold and transferred the notes, which were paid by the defendant, and on the trial produced by him. The evidence showed that the meals had by the defendant at the plaintiff’s tavern, and claimed in the account, and the cigars, were had during the same period when the liquors were had, but in his report the referee has separated that part of the account which is composed of liquors and drinks from the meals and cigars, and finds that the checks and notes credited by the plaintiff were given in payment of the liquor bill and the $55 borrowed money, and that so much of the account as is for meals and cigars remains unpaid ; and he reports as due from the defendant the amount of the $19 check and such part of the account as is for meals and cigars, with certain interest, making in all $136.84, for which he orders judgment for the plaintiff, with costs. The attempt, by the referee, to separate the legal from the illegal items of the plaintiff’s account, and apply the payments wholly to the illegal items, is clearly erroneous, inconsistent with the pleadings, and not sus
Here is a distinct admission, on the record, that the payments were made on the general account, including the liquor, and an attempted application thereof by the plaintiff to the whole account, and the balance claimed to be due is the balance of the whole acconnt. The finding of the referee, in the plaintiff’s favor, that the payments were to be applied on the items for liquor, only, is therefore wholly at variance with the claim of the plaintiff himself.
Neither does the evidence, irrespective of the pleading, justify any such finding. It is true, that the plaintiff swears, in a general way, that the notes and checks were given in settlement of the liquor account; but his own testimony, and that of his witnesses, to the particulars of the transaction, does not justify that conclusion. Take, for instance, the note for $200, which, if paid on general account, is sufficient for the purposes of this case. The plaintiff, in his testimony, undertakes to give the particulars of the whole conversation at the time it was given. It bears date on the 28th of June, 1870. The plaintiff states the circumstances under which it was given, as follows: “On the 28th of June, the defendant came
These facts do not import a separation of the items of the account, and the giving of the note to apply on so much as was for liquor alone, but a payment on general account. All the other circumstances of the case tend to show the same thing. No part of the account was effaced, or any intimation given, that any payment had been made on any particular items. And the defendant, was by the plaintiff, in the .account which has been set forth, and which must have been made as late as the
In some of the cases referred to, the question arose
Judgment reversed, new trial ordered, costs to abide the event, and another referee ordered to be substituted.