Armour v. Kirchoff ( 1892 )

McGown, J.

The complaint alleges (paragraph 2) that plaintiffs between the 20th day of February, 1890, and the 2d day of July, 1890, sold and delivered to the defendant meat, 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 2 of said complaint. Third. That at the time mentioned in paragraph 2 •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 “Defendant’s Exhibit 1,” showing an account between May 13, 1890, and July 29, 1890, between Mr. F. Kirchoff 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 Kirchoff 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. Kirchoff, or to his son Fred. Kirchoff, •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 Kirchoff, 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. Kirchoff, 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. All concur.