Wheeler Condenser and Engineering Company, Respondent, v. R. G. Packard Company, Appellant

Wheeler Condenser and Engineering Company, Respondent, v. R. G. Packard Company, Appellant. Pleading — defense that goods, the price of which was sued for, were sold subject to inspection by the government — when proof thereof cannot be given. In an action to recover a balance due for castings alleged to have been sold by the plaintiff to the defendant, the complaint alleged that the amount of such balance was a certain sum, and that the defendant had frequently promised to pay the plaintiff that sum. The answer did not deny these allegations, but alleged that the castings were for the United States government; that the parties understood that the castings were not to be paid for until they were inspected and accepted by the United States government; that such government had not accepted such castings and that the defendant believed that it would reject them because of certain defects therein. Held, that evidence tending to establish the allegations of the answer was not admissible under the pleadings. Senible, that such evidence was inadmissible for the further reason that the letters which constituted the contract did not state that payment for the castings was to be dependent upon their acceptance by the United States government. Appeal by the defendant, the R. Gr. Packard Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of February, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term. C. D. Rust, for the appellant. Norman W. Kerngood, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: This action was brought to recover the contract price of certain castings sold and delivered by the plaintiff to the defendant. The complaint alleged, among other things, as follows : “ III. That at various times between the 29 th day of March, 1902, and the sixth day of September, 1902, the plaintiff sold and delivered to the defendant two cast iron centrifugal pump castings. “ IY. That the same were reasonably worth the sum of $2,014.20. “ Y. That no part thereof has been paid, although payment thereof has been duly demanded by plaintiff of defendant, except the sum of $1,007.10, leaving a balance due and owing from defendant to plaintiff amounting to $1,007.10. “ YI. That the defendant has frequently promised to pay plaintiff said balance of $1,007.10.” The defendant by its answer did not deny these allegations of the complaint, but alleged that the castings were for the use of the government of the United States, and “ that it was understood and agreed by and between the plaintiff and defendant that before said castings were to be paid for by the defendant they were to be inspected and accepted by the Government of the United States of America, or by persons acting in behalf of said Government; ” that the government of the United States had not accepted said castings, and that the defendant had no knowledge that it would accept them, but believed by reason of certain defects therein that they might be rejected. At the conclusion of the trial the court directed a verdict for the plaintiff for the amount claimed in the complaint, and from the judgment entered thereon defendant has appealed. It asks for a reversal principally upon the ground that the trial court erred in rejecting evidence tending to establish the facts set out in the defendant’s answer above alluded to. We do not think the defendant was injured by these rulings. The contract under which the castings were furnished consisted of a written proposition in the form of a letter from the plaintiff to the defendant, and an acceptance, also in the form of a letter, from the defendant to the plaintiff, in neither of which is any mention made that the payment of the castings was to depend in any way upon an acceptance by the United States government. Not only this, but such evidence was inadmissible under the pleadings. It will be noticed that in the portion of the complaint quoted there is an allegation that the defendant frequently promised to pay plaintiff the balance of the purchase price, and this allegation defendant admitted by not denying the same in its answer. Such admission conclusively established that the plaintiff had complied with the terms of the-contract on its part, and by reason thereof had become entitled to receive from the defendant the price agreed to be paid for the castings ; that the castings were the kind called for by the contract y that the defendant had accepted them, and that the-price agreed to be paid was due. The rulings of the trial court, therefore, of which complaint is made, could not by any possibility have injured the defendant. The judgment appealed from-is right and should be affirmed,, with costs. Patterson, Ingraham and Laughlin, JJ., concurred; Yak Brunt, P. J., concurred in result. Judgment affirmed, with costs.