Opinion
July, 1897.
L.S. Finn, for appellant.
Franklin Bien, for respondent.
This is an appeal from a judgment entered on a verdict of a jury by direction of the court.
The action was brought to recover the sum of $1,750, less $50 paid on account thereof, for goods sold and delivered by one Lyonce Langer, the plaintiff's assignor, to the defendant.
The answer does not deny the sale and delivery, but pleads as a defense, first, payment, and, second, payment by notes of third parties.
A bill of particulars was ordered in regard to the second defense of payment, to-wit, the notes of third parties.
The order was not complied with, and an order was made precluding the defendant from giving any evidence in regard to the defense of payment by the notes of third parties.
The court, by directing a verdict in favor of the plaintiff, and against the defendant, adjudged that there was no conflict of evidence in the case, and no question of fact to be submitted to the jury, and although the defendant's attorneys requested to go to the jury on the question of payment, the motion was denied, and no exception taken thereto, still we hold that on an exception taken to the direction of the court to the jury to find a verdict for the plaintiff, the question is raised, whether there is any question to be submitted to the jury on conflicting evidence.
Although the second defense of payment by means of notes of third parties had been eliminated from the defense, still the general defense of payment remained pleaded in the answer, and the defendant had a right to give evidence thereunder. Such evidence was given and the defendant and one disinterested witness, Louis Bernay, testified that the plaintiff's assignor, Mr. Langer, in a conversation had, stated that there was only $70 due from the defendant to the said Langer, and although the evidence of payment on behalf of the defense is somewhat muddled, evasive and not satisfactory, we conclude that there was sufficient to submit the question of payment to the jury.
Judgment appealed from reversed and new trial granted, with costs to the appellant to abide the event.
McCARTHY, J., concurs.
Judgment reversed and new trial granted, with costs to appellant to abide the event.