Opinion
June, 1901.
William Henry Knox, for appellant.
G.A.C. Barnett, for respondent.
This case was tried with that of Richardson v. Borrill, and upon the same evidence so far as applicable. If the latter case was rightly decided, as we think it was, it is not apparent how this judgment can be sustained. That action was for the replevin of certain goods sold by the defendant here to the plaintiff, and claimed to have been the property of defendant's daughter. The present action is for two pieces of furniture which was delivered back to defendant. She claims that they were sent back to her on her demand because not included in the bill of sale. The plaintiff and his wife say that they were sold to defendant at her request. At all events they were within the issues decided in the Richardson v. Borrill action. The defendant herself testifies "we got two pieces and the expressman took them down. One was a tea table and the other a hat rack. They are in the list demanded in the other action because we did not separate them." We think that the judgment in the Richardson v. Borrill action was decisive of the only question involved in the present action.
Judgment reversed and new trial ordered, with costs to abide the event.
Present: SCOTT, P.J., BEACH and FITZGERALD, JJ.
Judgment reversed and new trial ordered, with costs to abide event.