76 A.D. 373 | N.Y. App. Div. | 1902
This action is to recover the contract price for goods sold and delivered. The answer was a general denial and breach of the contract. During the trial the defendant admitted the delivery of the goods, but contended that there had been a breach in that the contract was entire. The defendant ordered a quantity of different kinds of iron plates from the plaintiff. The plaintiff testifies that, the original terms were payment at ten days, but that the contract-was subsequently modified so as to permit delivery by installments, each installment to be paid for before the delivery of the. next installment. This action is to recover for an installment. I think that the judgment must be reversed solely on an erroneous ruling of the court. The bookkeeper of the plaintiff testified to certain conversations between himself, representing the plaintiff, and the defendant. He was asked whether he had knowledge of the item of the goods in suit, and he answered that he knew of the delivery of the goods, and that he had conversations a few days before the delivery and one or two after- it. He testified that after the delivery he saw the defendant in relation to the bill, and had a conversation with him. He was asked what was said, whereupon he replied that the plaintiff received a letter.from the concern asking for some
The judgment should be reversed and a new trial ordered, costs to abide the event.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.