Armour v. Kirchoff 46 N.Y. St. Rptr. 280

46 N.Y. St. Rptr. 280

Philip D. Armour et al., Resp’ts, v. Fred Kirchoff, Appl’t.

(City Court of New York, General Term,

Filed May 25, 1892.)

Sale—Verdict.

In an action for goods sold and delivered to defendant at his request, the answer was a general denial, and an allegation that defendant had no dealings with plaintiffs, and that the summons was served on the wrong person. On the trial defendant admitted that goods to the amount claimed were delivered as stated, but to defendant’s son, who had a similar name. Held, that the only question was, to whom were the goods sold, and that the verdict in favor of plaintiffs was conclusive of that fact.

Appeal from judgment in favor of plaintiffs, entered upon verdict and from order denying motion for a new trial.

A judgment was rendered herein in favor of the plaintiffs and against the defendant, on the verdict of a jury, on a trial held on September 25, 1891, for the sum of $490.51 and costs.

At the close of the trial a motion for a new trial was made, on the grounds that the verdict was against the weight of evidence, etc., and denied, and on the 22d day of October, 1891, an order was entered denying the motion for a new trial.

Frederick A. Botty, for app’lt; H. M. Greene, for resp’ts.

McGown, J.

The complaint alleges (paragraph second) that plaintiff, between the 20th day of February, 1890, and the 2d day of July, 1890, sold and delivered to the defendant * * * *281meat, at the special instance and request of defendant, which said goods were reasonably worth the sum of $1,717.12 ; that no part had been paid except the sum of $1,252.36, leaving a balance' due and owing to plaintiffs from defendant of $464.76.

Defendant in his answer sets up :

Second. A general denial of each and every allegation in paragraph second of said complaint:
Third,. That at the time mentioned in paragraph second of said complaint he was not engaged in the butcher business, and that he did not have any business transaction with the plaintiffs whatsoever ; that when the summons herein was served on him, it was served on the wrong person, etc.

A bill of particulars was offered in evidence marked Def’ts Ex. 1 (p. 3), showing an account between May 13, 1890, and July 29, 1890, between Mr. E. Kirehoff and Armour & Co., and a balance unpaid of $464.76, and it was admitted by defendant’s counsel that certain goods were sold and delivered as mentioned in the bill of particulars, but not to his client, and that young Kirehoff was the one that received the goods.

The sale being admitted, also the value of the goods, the only question to be submitted to the jury and the only issues to be passed upon were, to whom were the goods sold ? To the defendant Fred. Kirehoff or to his son, Fred. Kirehoff, Jr.?

The trial justice in his charge stated to the jury :

“ The first question to be submitted to you is, to whom were the goods in question sold? If you determine that the goods were sold to Kirehoff, Sr., your verdict will be for the plaintiffs for $464.76, with interest.”

The jury having rendered their verdict for the plaintiffs upon a disputed question of fact for the amount claimed and interest, evidently found as a question of fact that the goods in question were sold to the defendant and not to the defendant’s son, F. Kirehoff, Jr., and we see no reason for disturbing their verdict.

We have examined the exceptions taken upon the trial and found no merit therein.

Judgment and order appealed from must be affirmed, with costs to the respondent.

Newburger and McCarthy, JJ., concur.

Armour v. Kirchoff
46 N.Y. St. Rptr. 280

Case Details

Name
Armour v. Kirchoff
Decision Date
May 25, 1892
Citations

46 N.Y. St. Rptr. 280

Jurisdiction
New York
Court
New York City Court

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