Meagley v. Hoyt

125 N.Y. 771 | NY | 1891

The court say: “We are of the opinion that the exceptions to the charge referred to were well taken. So far as the one hundred and twenty-two barrels, which had been used before adulteration was discovered, are concerned, there was no evidence whatever that they were adulterated; but, on the contrary, there was affirmative evidence that a large proportion thereof was free from the admixture of any foreign substance. With reference to the balance of the tallow, there was no positive evidence that any of it was adulterated, except about three barrels. The charge was equivalent to an instruction that the jury could find a verdict for damages which were ■ wholly unproved, and presumptively not suffered, and that any defect in such proof was supplied by the omission of the defendants to establish affirmatively that their tallow was free from foreign substances. This was so manifestly erroneous-that it needs no argument to establish the error. (Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26.)

“It is an invariable-rule that tlie burden of proof lies upon the plaintiff to establish his cause of action, and we know of no circumstance which excuses him from this obligation and imposes the duty upon the defendants of proving that the. alleged cause of action did not exist. The plaintiff may, of course, rest upon a prima facie case; hut this requires the proof, at. least, of some circumstances from which the existence of the actionable facts may be legitimately inferred. There is no such evidence in this case, and for the errors in the charge the judgment must be reversed.

Homer Weston for appellant. OlarTc & Brown for respondent.

“ The defendants also attempted to raise the question whether the plaintiff had not precluded himself from maintaining an action for damages by accepting and using the property, both before and after knowledge that a part of it was not tallow, but this has been done so imperfectly that we doubt whether the question has been properly raised. There was probably enough in the evidence to raise the question whether the plaintiff was not bound, upon the contract of sale, to inspect the goods bought upon their receipt by him, and, unless there was some latent or conceded defect in them, was barred óf his action by their acceptance. (Coplay Iron Co. v. Pope, 108 N. Y. 236; Studer v. Bleistien, 115 id. 316; Mayer v. Dean, Id. 556.)

“Without considering this question, however, we are of the opinion that the judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event.”

Ruger, Ch. J.,

reads for reversal and new trial.

All concur.

'Judgment reversed.