Blendermann v. Mann-Wray

In our judgment the learned court below erred in dismissing the complaint. The evidence was sufficient to warrant the submission to the jury of the question as to whether the plaintiff had given credit to the defendant. The fact that the plaintiff demanded payment from the present husband of the defendant was a circumstance which the jury had a right to consider in determining as to whom credit was given. If the jury, upon consideration of all the evidence, determine that credit was extended to the defendant, then, under the authorities, it is a question of fact for the jury to determine whether, in view of the circumstances of the case, there was an account stated. Tousley v. Denison, 45 Barb. 490; Lockwood v. Thorne, 18 N. Y. 285.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.