McArthur v. Wilder

3 Barb. 66 | N.Y. Sup. Ct. | 1848

By the Court,

Gridley, J.

The defendant in error recovered a judgment against the plaintiff in error, before a justice in Onondaga county, upon proof of the following receipt, accompanied with evidence of the delivery of the property mentioned in it,

“ Rec’d of James Wilder 3 barrels of white fish to be paid for when sold at six dollars per barrel.

Dated Auburn, Nov, 11, 1842.

(Signed) James McArthur.”

A witness proved that he was present at a store in Auburn when he saw the identical receipt delivered by the defendant to the plaintiff — identifying both the receipt and the defendant; not with absolute certainty, but according to his recollection and belief. This rendered the admission of the evidence proper. There was prima facie evidence of the giving of the receipt by the defendant. On the cross-examination, this testimony was much strengthened, and in addition, the delivery of the fish was-established by the same witness. In the absence of any contradictory evidence, the justice was right in holding the. facts: duly proved.

The transaction was clearly a sale of the fish at $6 per barrel, and the only question was, whether the justice should have required the plaintiff to prove that the time of payment had arrived, by the actual sale of the fish. We think the lapse of time, (3¿ years,) especially when we consider that the fish were bought for the purpose of being sold again, and that the article' was of a description requiring a ready sale, and that the fact of actual sale or not was within the knowledge of the defendant, rather than of the plaintiff, formed a sufficient ground to presume that the fish had been sold by the defendant. If they had not been sold, or were of a bad quality, as stated in the defendant’s notice attached to the plea, it was open to him to prove it. The casein 3 John. Rep. 166, is not applicable; but the decision in the case of Tuttle v. Mayo, (7 John. Rep. 132,) is directly in point, to show that the justice was right in presuming the sale of the fish ; and holding the defendant responsible for them. (See also 9 Pick, 16; 1 Cowen’s Treatise, 126.)

There was no objection on the trial, or on the argument, that there was no demand of the money, by the plaintiff, before suit brought, and therefore we would not reverse the judgment for the want of that evidence; even if we should think it the fair construction of the agreement that the plaintiff should call for his pay. Had that objection been taken, perhaps the fact of such demand might have been presumed. The judgment must therefore be affirmed.