25 N.Y.S. 396 | N.Y. Sup. Ct. | 1893
The judgment under review awards to the plaintiff the value of ozone generators which it is alleged he manufactured at the special instance and request of defendant, and delivered, by his direction, to the United States Ozone Company-Defendant does not dispute that plaintiff manufactured the goods- and delivered them to the ozone company, or that they were not in number or of the value averred in the complaint, but he didi deny, both by his pleading and his deposition read on the trial, that the goods were purchased by him individually; his contention-being that he was an officer of the United States Ozone Company, and in that capacity, as the plaintiff well knew, ordered the generators of the plaintiff. While he denied making any promise-whatever to personally pay for the goods, he insisted that the promise which the testimony on the part of the plaintiff tended to prove was a- promise to answer for the debt of a third party, not in writing and subscribed by him, and therefore void because in contravention of the statute of frauds. But the evidence was not of such, a character as to have warranted the court in dismissing the complaint at the close of plaintiff’s case, or after the testimony was all in, on either ground. Defendant’s denial of a promise to pay plaintiff was contradicted by the plaintiff and his son; therefore,, as to it, a question of fact was presented. Nor could it properly have been determined, as a matter of law, that the promise alleged
There remains, therefore, for further consideration, only the exceptions taken to the rulings of the court in the admission or rejection of evidence. We Shall discuss the questions presented by two of them. Against the defendant’s objection, the court received in evidence the following letter in the handwriting of Connolly, a clerk of defendant:
*398 “Dec. 17th, 1880.
“Dear Sir: Why don’t you send me the report of how many machines you have in process of construction? Please put in works, at once, 1,000 more generators.
“Yours, truly, H. A. Root,
“Per Connolly.
“Mr. Thomas Maddock;.”
When received, it had been made to appear that Connolly was, at the time of its writing, Boot’s clerk, accustomed to write letters by his direction, but had no recollection of special direction to write this letter. Defendant complains that by it there was placed before the jury as a fact" that defendant made orders on his own account, and not as treasurer of the ozone company. There were other letters containing orders confessedly in the handwriting of Boot, signed by him individually, and so it is not likely that the result was affected by its admission. But it was not error to admit it. In addition to the fact to which Connolly testified, that he had been for a number of years, and was at the date of the letter, in Boot’s employ, and accustomed to write letters by his direction, there were other circumstances, to one of which we shall allude, which, considered in connection with the direct proof of authority, was sufficient to establish, prima facie, that the letter was sent by the direction of defendant. The defendant appears to have recognized the letter by a subsequent one in his own handwriting, which continues the correspondence upon the lines of the letter of December 17th. That letter, as we have observed, asked for a report of the number of machines in process of manufacture. Apparently, it was replied to, for, the day following, defendant sends a letter in his own handwriting, in which he says:
“I am in receipt of your favor of yesterday. You are increasing the number, it is true, but not sufficiently. From your letter it seems that there are about 500 now making. We want, all told, 1,000, as soon as possible.”
The evidence that the letter of the 17th was written by defendant’s direction was sufficiently convincing to make it necessary for the defendant to show that it was not his act, if such was the fact. At that stage of the proceeding the occasion was presented for him to inform the court that it was his purpose to make it appear that the letter was not written by his direction. Had this been done, the opportunity would doubtless have been afforded him to challenge the proofs presented by the plaintiff on that subject, before the admission of the letter in evidence. He elected to stand on the insufficiency of plaintiff’s proof, and without possible injury to his defense, unless he could have proven that the letter was not sent by his direction.
The court excluded the answer to the fourth interrogatory, which was: “If your answer to the last interrogatory should be ‘Yea,’ state where said company did business, whether it was organized as a corporation, and, if so, under the laws of what state.” Ho