Opinion
January Term, 1900.
Judgment affirmed, with costs.
The plaintiff has recovered of the defendants upon the following charge: "That on or about November 18, 1897, the defendants became indebted to the plaintiff for moneys expended on account of and at the request of the said defendants, as follows:
Unloading car 2× 8 lumber, No. 21631 . $10 00 For loading car 2× 8, No. 38913 ...... 10 00 For paid freight on car No. 21631 ... 24 88 For unloading car No. 51324, 1× 8 .... 10 00
No part of which has been paid." The plaintiff, who was in business at Elmira on September 3, 1897, gave the defendants, at Tonawanda, a written order for two carloads of specified sizes and kinds of lumber, to be sent by railroad to him at Elmira, "to be practically free of sap," at prices specified in the order. The defendants sent first one carload, and next the other. The plaintiff unloaded each car upon its arrival. Some of the lumber corresponded with the order and a considerable part did not, because not practically free from sap. After unloading the first car, the plaintiff wrote to the defendants to the effect that some of the lumber was not according to the contract, and offered to accept 9,032 feet and hold the balance subject to defendants' order, and plaintiff inclosed his check for the amount he offered to accept. After the second car was received and unloaded, the plaintiff sent defendants his check for the same, less a small amount which he refused to accept. The defendants returned both checks to the plaintiff, and asked "that the lumber be placed back on the cars, and we will take care of it." The plaintiff answered, stating that he accepted none of the lumber, and asked defendants to take it away and pay plaintiff his charges and damages. Defendants answered: "If the lumber is all there, Mr. Wyckoff can easily load same on cars and send us his bill, and we will send him New York draft promptly to take care of same." Then one of the defendants called at the plaintiff's place of business and told the plaintiff's servant in charge to have the plaintiff make out his bill and defendants would pay the charges. The plaintiff reloaded the lumber and sent one carload to the defendants, and the defendants accepted and sold the other at Elmira. The items in the above extract from the complaint are the plaintiff's charges, one being for freight paid, and the others a reasonable estimate of the cost to the plaintiff in servants' wages of the loading and unloading. Upon these facts the contract for the purchase and sale of the lumber was rescinded upon plaintiff's promise to restore the lumber, and defendants' promise to pay him his reasonable charges. The plaintiff has restored the lumber, but defendants have not paid the charges. The defendants' agreement to pay the charges was a ratification of them equivalent in legal effect to an original request to pay or incur them, and thus the complaint sets forth the facts according to their legal effect. We do not think there is a substantial variance between the complaint and proof. The judgment should be affirmed, with costs. All concurred.