Dietrich v. Dreutel ( 1887 )

Yan Brunt, P. J. :

It has not been considered necessary in the foregoing statement to refer to the various other exceptions which were argued upon the appeal, the one above referred to being fatal to the judgment, which has been rendered. The learned referee seems to have proceeded upon the theory that no evidence whatever could be given in relation to any agreement which might .have been entered into prior to the 4th of April, 1879, because the complaint limited the cause of action therein set forth to goods delivered subsequent to the 4th of April, 1879. The defendant sought to prove, by the evidence objected to, that there had been dealings between the defendant and the plaintiff’s assignor prior to the 4th of April, 1879, and that goods had been delivered by the plaintiff’s assignor to the defendant prior to that time, under a certain,, agreement, and that no new arrangement in reference to payment was entered into between the parties in relation to the goods delivered subsequent to the 4th of April, 1879.

The learned referee evidently erred in excluding this testimony. It is true that, as to the delivery of the goods themselves, the parties were restricted to the dates mentioned in the pleadings, but, under the general denial, the defendant had a right to prove any state of facts going to show that the allegation in the complaint was untrue, that the goods were delivered by the plaintiff’s assignor, and that he, the defendant, promised to pay the price therein named. If any agreement or contract had been entered into in reference to the delivery of goods prior to the fourth of April, and the goods in question were delivered thereunder, it is clear that the defendant would have the right to prove that agreement in order to show what the terms and conditions of the sale were, or whether it was to be considered, in view of that agreement, as any sale whatever. This, by the ruling of the referee, the defendant was precluded from showing. The question was repeated more than once, and evidence of an admission which was made by the plaintiff’s assignor, in reference to the arrangement between the defendant and the plaintiff’s assignor, under which goods were purchased and delivered, evidence entirely pertinent to the general denial and the question of payment, was excluded upon these same grounds.

It is urged, in answer to this objection, that at folio 31 the evidence that the relations prior to April fourth, as between the defendant and the plaintiff’s assignor, were exactly the same as subsequently, was admitted, but the referee excluded testimony tending to show what that arrangement, which existed prior to April 4, 1879, was, and therefore, although the evidence was offered establishing that the arrangement was the same before April 4, 1879, as it was subsequent to that date, the evidence as to what the arrangement was, was excluded.

This seems, as has already been stated, to have been error, as it precluded the" defendant from showing the terms and conditions under which the goods referred to in the complaint were purchased and delivered. In view of the conclusion to which we have arrived in reference to this exception, it is unnecessary to consider the other objections which were urged by the appellant upon the argument of this appeal.

The judgment must be reversed, with costs to the appellant to abide event, and the case referred back to a new referee to hear and determine. ,

Beady and Daniels, J J., concurred.

Judgment reversed, with costs to appellant to abide event; case referred back to a new referee to hear and determine.