13 N.Y.S. 944 | N.Y. Sup. Ct. | 1891
This action was brought to recover the value of a quantity of bark sold and delivered by the plaintiff to the defendants. Judgment was rendered in favor of the plaintiff before a justice of the peace upon the verdict of a jury for the sum of $7,603 damages, being for a balance of account. On appeal to the county court this judgment was reversed,- with costs. Upon-the trial it was claimed by the plaintiff that the bark so sold to the defendants was to be measured at a place called Frewsburg, where the same was to be loaded upon cars for shipment. On the other hand, the contention made by the defendants was that the bark was to be measured by the tanneriés to which the same should be shipped, and that the measurements returned to the defendants should be accepted by the plaintiff. If the measurements made at the tannery were correct, then it is established beyond question that'the defendants had fully paid the plaintiff the amount of his claim. According to the plaintiff’s testimony, a portion of the bark was to be sold at the sum of $4.40 per cord, delivered on the cars at Frewsburg, and the other portion thereof at $4.50 per cord. This transaction was had in the year 1886. The exception upon which reliance seems to be mainly placed for an affirmance of the judgment of the county court is the admission of incompetent testimony against the defendants by the justice of the peace. One of ■the defendants had given evidence to the effect that the measurements were to be made at the tanneries, and that he should account to the plaintiff in accordance therewith. He was asked upon cross-examination the .following question: “Did you buy bark of Brant & Yenman about the same time, at the same terms?” This question was objected to, but the objection was overruled, and the defendant answered to the effect that he did buy bark of Brant & Yenman on the same terms, and to be measured at the same place, as was the bark which was bought of the plaintiff. Yenman was then called as a witness to show that the bark which his firm had sold to the defendants was to be measured at Frewsburg. This ruling of the justice is urged upon our attention as being erroneous; yet as it seems to us, if this was the ground upon which the judgment of the justice of the peace was reversed, we should