Swan Lamp Manuf'g Co. v. Brush-Swan Electric Light Co.

It is alleged by the defendant, and admitted by the plaintiff, that the goods furnished by the plaintiff were delivered under and pursuant to a contract between the defendant and the Swan Incandescent Electric Light Company, which was transferred by that company to the plaintiff, so that the plaintiff, for all practical purposes, was substituted as a party to the contract in place of that corporation. The defendant, by the contract, became the sole agent for the sale of electric lamps and other electrical apparatus manufactured by the plaintiff, which agency covered certain territory specified in the agreement. The plaintiff was to deliver such goods as might be sold by the defendant, and ordered by it, on board of such cars or other conveyances as it might designate; and the defendant was to be allowed on such sales a discount of 20 per cent, from the trade price fixed by the plaintiff. The goods so delivered were to be paid for by the defendant by 90-day drafts, or at its option, in cash, with If per cent, additional discount. The plaintiff filled orders furnished by the defendant until it became indebted in the amount found due by the referee. The transaction between the plaintiff and defend*870ant was practically a sale of goods by the former to the latter, on its credit, at 20 percent less than trade prices, deliverable in such manner as it directed, It certainly was not a sale of goods by the plaintiff to the defendant’s customers; for the plaintiff, by the contract, was to make no sales in the territory assigned to the defendant, except through it and on its responsibility. The defendant insists that the plaintiff should have declared on the special agreement, and could not recover as for goods sold and delivered. The answer to that objection is that the Code has not changed the former rule of pleading, that a party who has fully performed a special contract on his part may count upon the implied assumpsit of the other party to pay him the stipulated price, and is not bound to declare specially on the agreement. Farron v. Sherwood, 17 N. Y. 227; Hosley v. Black, 28 N. Y. at page 443; Higgins v. Railroad Co., 66 N. Y. 604. The evidence adduced satisfactorily sustains the findings and conclusions of the referee, and we find no error in the rulings that require a new trial. The objection that as to a portion of the goods the credit of 90 days had not expired when the action was commenced is unavailing1, because not raised by the answer. Smith v. Holmes, 19 N. Y. 271. This upon the ground that new matter must be pleaded. Code, § 500, subd. 2. It follows that the judgment appealed from must be affirmed, with costs.

All concur.