Yolland Ice & Fuel Co. v. Mulcahy

FINCH, P. J.

The defendant has appealed from the judgment herein in favor of the plaintiff.

The complaint alleges and the court found that the defendant is indebted to plaintiff on an open book account for goods, wares, and merchandise, sold and delivered to defendant by plaintiff at his special instance and request, in the sum of $939.09, which was the reasonable value thereof, and which defendant agreed to pay. A bill of particulars was furnished defendant, and it is not claimed by appellant that he did not purchase and receive the merchandise therein set forth or that the charges therefor are unreasonable. His claim is that he paid plaintiff in full for such merchandise before the action was commenced.

The defendant was a contractor at the time the indebtedness was incurred and, according to the bill of particulars, the merchandise, which consisted of gravel, sand, rock, cement, lime, and plaster, was purchased for use on several jobs which the defendant had under construction. The dates of these purchases ranged from February 8 to December 26, 1918. The defendant testified that he paid this indebtedness June 9, 1918, by giving the plaintiff a check for $1,100 in full settlement thereof. Witnesses for the plaintiff testified that this check was given in payment of other sums which the defendant owed the plaintiff at that time, and the court found accordingly.

Appellant contends that evidence of this other indebtedness was improperly admitted because not alleged in the complaint or set out in the bill of particulars. There is no merit in the contention. It was not the indebtedness for which the suit was brought, and evidence thereof was properly admitted to show that the payment of $1,100 was made in liquidation thereof and not in satisfaction of the indebtedness for which the suit was brought.

[724]

The case was tried November 26, 1920, and when the parties rested the court announced that „ the plaintiff was entitled to judgment. At some subsequent time, not disclosed by the record, the court set aside the order for judgment in favor of the plaintiff for the reason stated by the trial judge at a hearing had December 3, 1923, as follows: “I set aside the order for judgment, not upon the theory I did not think that the case was proven that the plaintiff was entitled to recover as the evidence was put before me, but I felt that the defendant had not a proper opportunity to examine the account that was proven in court.” Counsel for defendant said: “We are satisfied to let the matter stand as it now stands. ... We are fully satisfied with the evidence adduced on the part of the defendant.” After further colloquy between the court and counsel for the respective parties, the court ordered judgment for plaintiff. Appellant seems to contend that his rights were in some manner prejudiced by the delay in the disposition of the case, but in what respect does not appear.