26 N.Y.S. 13 | New York Court of Common Pleas | 1893
The action is for goods sold and delivered upon a contract for 10,000 palms to be shipped from Florida and delivered in Yew York. Twenty-five hundred were received and paid for by the appellant. For the residue the plaintiff tendered a delivery order on the carrier company, by whom the goods were held in the city of Yew York. The defendant refused the order and the goods, and he resists the action upon the grounds that the contract was void because not in writing, that there was no delivery of the goods for the price of which the judgment is recovered, and that the contract was for shipment by another line of steamships than that by which the goods were brought. The judge instructed the jury that if the shipment was to have been by the other line, the verdict should be for the defendant. The appellant also insists that evidence of tender was inadmissible, on the ground that an allegation of performance is not supported by proof of excuse for nonperformance. In review of the judgments of the city court, we are confined to the correction of errors of law raised upon the record by proper exception; emphatically when, as in the present instance, the case does not purport to contain all the evidence. The verdict, therefore, concludes every question of fact in favor of the respondent. Sutter v. Vanderveer, 122 N. Y. 652, 654, 25 N. E. 907. The appellant impeaches the contract of sale because not in writing, but the receipt and acceptance of part of the goods was effectual to obviate the operation of the statute. Jackson v. Tupper, 101 N. Y. 515, 5 N. E. 65; Van Woert v. Railroad Co., 67 N. Y. 538. Appellant objects again that there was no-delivery, but actual delivery is not necessary to sustain an action
