Charles B. Wood, Appellant, v. William Belden, Respondent

Charles B. Wood, Appellant, v. William Belden, Respondent. (Argued March 21, 1873; decided June term, 1873.) Plaintiff brought his action to recover the balance of an account for goods sold, for repairs, and for a commission on the sale, by him of a carriage for defendant, at his request. The answer was, in effect, a general denial. In the account rendered, defendant was credited with the amount received on the sale of the carriage, less the commission charged. Upon the trial defendant offered to show that the carriage was sold by plaintiff without authority and against defendant’s orders, and for a price below its value, and claimed a credit for its full value. This was objected to as inadmissible under the pleadings, and was excluded. Held, no error; that the offer was to show a conversion of the carriage, not a matter of account; that if defendant could waive the tort and charge plaintiff with the value, as in contract, defendant’s claim was for a breach of duty, -which, although it would be good answer to plaintiff’s claim for a commission, yet it could not be availed of, nor was it admissible in evidence without being pleaded in some form. The court, in the charge to the jury, withdrew from their consideration the credit for the carriage sold. The jury, however, allowed defendant, by their verdict, the amount credited to him therefor by plaintiff. A new trial was granted by the General Term because of this allowance. Held, error; that plaintiff, not defendant, had the right to complain of this disobedience of the jury to the instruction of the court, as it could not preclude the defendant from asserting his claim in another action. Dewitt, C. Brown for the appellant. Dudley Field for the respondent. [MAJORITY — Johnson, C.,] Johnson, C., reads for reversal. All concur. Order of General Term reversed, and judgment upon verdict affirmed.