| N.Y. App. Div. | Mar 14, 1899
This case is almost entirely a question of fact. The defendant offered no evidence upon the trial. The plaintiff’s evidence, therefore, must be assumed to be true; and, if there was any evidence upon which the justice might find the sale and delivery of the goods to the defendant, then his judgment should be sustained. It appears from the evidence that the defendant had, prior to the transactions in question, purchased goods of the plaintiff at different times, amounting in value to some hundreds of dollars, and had paid for the same. Upon the trial there was offered and received in evidence, without objection, an order purporting to have been given by the defendant to the plaintiff’s agent in New York to ship certain merchandise to the defendant. It appears that pursuant to that order the plaintiff shipped such merchandise in seven boxes, each marked as follows: “Levi B. Dedrick, Corinth, N. Y., via Citizens’ Line and D. & H. R, R.” The defendant lives at Corinth, Saratoga county, N. Y. It appears that these goods were shipped from New York and delivered to the Citizens’ Line of Steamboats, and its receipt is in evidence for seven packages of -earth paint. The station agent at Corinth testifies that he received seven cases marked “E Paint,” addressed to Levi B. Dedrick, according to the markings, and that he delivered them to a teamster to whom the defendant had directed him to deliver his freight. There was evidence, also, to the effect that the plaintiff had mailed to the defendant a statement of the account for such merchandise and the prices, and that on the envelope was a notice reading as follows: “The Sherwin-Williams Co., 397 Washington Street, New York. Return in 5 days,”—and that the same has never been returned to the plaintiff as undelivered matter. The defendant was present in court when this testimony was given, and remained silent.
Without entering into any discussion as to this evidence, and recognizing the fact that there are elements of weakness in the case, still we think it constitutes some evidence to sustain the finding of the justice, and that, therefore, the judgment of the county court should be reversed, and that of the justice affirmed, with costs in this court and in the court below.