O'Neill v. Crotty

Where separate deliveries are contemplated in a contract of sale, and payments are to be made upon each delivery, an action may be maintained therefor, as for the sale and delivery of the particular goods sued for. In such an action the vendee may set up the contract for the whole, plead the failure of the vendor to make other deliveries under it, and claim damages for such breach; but, if he set up the breach without a counter-claim, it is no ■defense to the action. In Awry v. Wilson, 81 N. Y. 341, there was an indivisible contract and a delivery of part, with a waiver of a complete delivery of •the whole as a condition precedent to payment for such part. The action was for goods sold and delivered. Defendant set up the special contract for the whole, and a refusal to deliver the residue. The court said: “While the defendants had the right to recoup any damages sustained by a failure to deliver the glass as agreed upon, or to bring an action to recover the amount of the same, they cannot, under the pleadings in this action, prevent a recovery for the value of the glass actually delivered, as they have not set up a counter-claim, but simply based their defense on the non-performance of the contract. ” The rule undoubtedly governs the case of an agreement to pay for ..goods as delivered, and in the case before us there was some evidence from which it might be inferred that such was the contract between these parties. The goods were to be manufactured abroad and imported, and deliveries were made as they arrived. “Bills were to be dated 30 days ahead from the date of delivery, and, if he paid his bills in ten days, he was to get a seven per cent, cash discount.” The credit for these goods expired October 10th, which was 40 days after the last delivery. They were sold at two dollars a gross, 30 days’ dating, and 10 days’ time. This was the testimony of the plaintiffs, and was not contradicted. There was evidence therefore to sustain the finding of the trial judge that the amount sued for became due and payable October 10, 1889, and that is all we are required, as an appellate court, to inquire into upon a simple exception to a finding of fact. We are only authorized “to review the facts for the purpose of ascertaining whether any allowable construction of which they are capable will warrant the conclusion ■of fact at which the judge or referee has arrived.” Stilwell v. Insurance Co., 72 N. Y. 388. We cannot review the facts “after an affirmance by the general term, so long as there is any evidence tending to support the findings.” Potter v. Carpenter, 71 N. Y. 75. The defendant, therefore, having become indebted, as found by the trial judge, for the portion of the goods delivered, an action as for a sale and delivery thereof was maintainable, and the motion to dismiss the complaint was properly denied, notwithstanding such delivery was under a contract for the sale of a greater quantity. There was no variance between the pleading and the proof.

The exception to the granting of the plaintiffs’ motion made at the close of plaintiffs’ case to strike out the evidence elicited by defendant upon cross-ex*282ami nation of plaintiffs’ witness in reference to the "goods delivered not conforming to the sample, and also the evidence in reference to the special contract, does not show error. No'claim for damages on account of the goods not conforming to the sample was set up in the answer, and proof of the special contract constituted no defense, as complete delivery of the whole of the goods thereunder was not a condition precedent to payment. It is proper to say here that, under the denial in the answer of the sale of 155 gross, the defendant was entitled to show exactly what the contract of sale was, and, if this involved proof of a special contract for 200 gross, he was entitled to prove it, for there was no way of disproving plaintiffs’ allegations except by showing the facts. Dietrich v. Dreutel, 43 Hun, 342; Manning v. Winter, 7 Hun, 482. The trial judge allowed this proof to be given by cross-examinatian of the plaintiffs’ witness, and I understand that, in striking out the evidence of the special contract at the close of the testimony, he did no more than rule that such special contract as proved constituted no defense, under the circumstances disclosed by the testimony. The defendant offered no evidence to show that payments, under the contract, did not become due until all the deliveries thereunder were made,.but left the plaintiffs’ evidence in that respect uncontradicted. Under those circumstances, the special contract was no defense, and evidence thereof was immaterial. The j udgment should be affirmed, with costs. All concur.