Smith v. Holland

The referee has found, and upon evidence justifying it, that after the note was given, upon the settlement made, the defendants agreed that in case the shipment of black walnut lumber should prove,' on arrival, to contain less than 149,013 feet, at which amount it had been invoiced-by the defendants, the defendants would make good the deficiency. This agreement was subsequent to the settlement, which was made upon the basis of the invoice being correct, although it was at the same interview. The proof was admissible. (Stockwell v. Holmes, 33 N. Y. 53.) It clearly, therefore; wás not merged in the settlement; for though at the same interview, it was, as I have said, after the settlement, and *335for the purpose of doing a just thing in case an item included in the settlement should turn out to be incorrect. Nor was it without consideration. Upon the basis that that lot of lumber contained 149,013 feet, the accounts had been settled. _ But, in fact,- the lot only contained 145,16*3 feet. So that the defendants were allowed and paid, by the plaintiffs, for 3850 feet of lumber which they never delivered. They had, therefore, money of the plaintiffs to the amount of the price .of 3850 feet of lumber, to which they were not justly entitled, and were under a moral obligation to repay it; and that moral obligation is a sufficient consideration to support the promise.

The variance between the complaint and the proof is immaterial, after judgment. We may, on this appeal, order an amendment, so as to conform the allegations of the complaint to the evidence.

The judgment.should be affirmed.

Geo. G. Barnard and Cardozo, Justices.]