49 Barb. 472 | N.Y. Sup. Ct. | 1867
I think the justice erred in the construction which he gave to the language of the answer, “ that it meant that she was to make payments, from time to time, as she conveniently could.” The answer states that it was “ distinctly agreed that she was to make payments, from time to time, as she could, out of her business, and from the proceeds of the sales of said goods.”
I can see nothing in the answer to warrant the construction given to it. The language is perfectly plain, that she was to pay as soon as she could. There is no room for construction. The word “ conveniently” changes the plain and obvious meaning of the answer. If the defendant is to be judged by her words, under the sanction of an oath, she was bound to pay for the goods as soon as she could out of her business and from the proceeds of the sales of the goods in question. She testified that she received from these sources in July $150, in August $75, in September $50; and in October $50—in all $325. The whole amount of her purchases from the plaintiffs was $285.31. If it was to be left to her convenience, the time might never arrive when she would be under obligation to make payment.
The same error affected the judge’s charge to the jury, in which he told them that if they believed that the defendant purchased the goods with the understanding that she should
There was a confiict in the evidence upon the question of what the contract really was, and at the close of the evidence the plaintiff’s counsel requested the court to charge the jury that the burden of proof was with the defendant, which the court declined. This, it seems to me, was also an error. It was conceded, in the opening, at the circuit, that the defendant held the affirmative, and the defendant accordingly put in her evidence to sustain the defense set up in the answer. The proposition was strictly true, and I think the plaintiff had a right-to have the jury so instructed.
For the foregoing reasons, I am of the opinion that the judgment should be reversed, and a new trial granted, with costs to abide the event.
Leonard, J. I concur with Judge Welles. As matter of law, the plaintiffs were entitled to judgment, and the jury should have been so directed, in my opinion.
Clerks, J. I dissent. The meaning of the parties in the purchase was derived from the evidence.
Hew trial granted.
Leonard, Clerke and Welles, Justices.]
