44 Barb. 96 | N.Y. Sup. Ct. | 1865
The question in this case is, whether the plaintiff, at the time the contract for the butter in question was made, paid some part of the purchase money so that the contract was valid. (See 2 R. S. 136, § 3, sub. 3.)
At that time the defendant was indebted to the plaintiff in the sum of §6.50 for a barrel of flour the latter had sold and delivered to the former ; which flour the plaintiff had charged upon his account book to the defendant. The plaintiff's account book was at his store in the town of Tompkins, and
It must be conceded that the decision of the justice establishes the fact that it was a part of the contract that the price of the flour was to apply as a partial payment towards the butter. But the plaintiff did not make any entry on his account book to show that the flour was paid for by the butter or otherwise ; and I am of the opinion that the entry respecting the flour, by the plaintiff, on his memorandum book, was insufficient to make it operate as a payment towards the butter, within the statute. It should have been made on his account book, to have canceled the charge for the flour. (See Brabin v. Hyde, 30Barb. 265, and cases there cited.) The entry on the memorandum book was of no more validity than an entry on any loose piece of paper would have been that the plaintiff had with him.
There were other charges for goods besides the flour on the plaintiff’s account book, against the defendant, and it is possible such book could have been made evidence against the defendant, in an action against him by the plaintiff. Hence, credit for the butter, or some credit to show the flour was paid for, should have been entered on the plaintiff’s account book.
For these reasons, I am of the opinion the judgment of the county court should be affirmed with costs.
Decision accordingly.
Sarhfr, Mason an4 Salami, Justices.]
