#### BAKER et al. v. LORING.

(Supreme 'Court, General Term, Fourth Department.

December 26, 1895.)

Trial—Province op Court and Jury.

In an action for lumber sold, where the defense was a general denial, plaintiff’s salesman testified that he remembered putting up the lumber,, and starting it for defendant’s building; that he entered the items in his book, and each evening read them off to plaintiff’s bookkeeper, who entered them in plaintiff’s books; and that his book was lost in a fire in> plaintiff’s office. Plaintiff testified that he saw some of the lumber at defendant’s building, but could not tell the number of feet delivered, except from his books, and that his ledgers were saved from the fire. Plaintiff’s bookkeeper testified that each afternoon he got the items of lumber sold from the salesman, and put them in the daybook, which was burned, and that he posted from the daybook to the ledger, but did not state the items in the latter; that he made all computations necessary to make the entries in the ledger; that they were correct; and that, after defendant had received an itemized bill, he spoke of paying it. A bill of items presented in court was conceded to be a copy of the entries in plaintiff’s-ledger regarding the lumber. *Held,*that a nonsuit was properly denied.

*645Appeal from judgment on report of referee.

Action by Charles H. Baker and another against Sanford E. Loring for goods sold. Judgment was rendered for plaintiffs, and defendant appeals.

Affirmed.

It is admitted in the answer that the plaintiffs are copartners doing business at Syracuse under the firm name and style of G. H. Baker & Go. It is alleged in the plaintiffs’ complaint that the plaintiffs, at the request of the defendant, sold and delivered to the defendant goods, wares, and merchandise, •consisting of lumber and building materials, and the cartage of the same, •of the value and agreed price of $2,551.73, and which sum they were reasonably worth; “that said goods were sold and delivered between the 17th day of January, 1893, and the 15th day of May, 1893, and that no part thereof has peen paid, except the sum of $1,550, paid to apply thereon at various times prior to June 2, 1894.” The complaint alleges that the defendant “is justly indebted to the plaintiff in the sum of $1,001.73, with interest thereon from May 3, 1893.” The answer, after admitting the copartnership, contains ■simply the following words: “That he denies that he has any knowledge, or information thereof sufficient to form a belief, as to the truth of any other allegations in said complaint contained.”

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Miller, Gridley & Pratt, for appellant.

Homer Weston, for respondents.

HARDIN, P. J.

Under the pleadings as they were framed, we think the defendant, in order to give proof of payment of the indebtedness stated in the complaint, was called upon to aver in his answer a defense of payment. McKyring v. Bull, 16 N. Y. 297; Lent v. Railroad Co., 130 N. Y. 504, 29 N. E. 988. Plaintiffs withdrew the objection, however, to defendant’s claim to prove that Baldwin had paid the sum of $900 and $1,000, other than the $1,550. Notwithstanding that withdrawal, no proof was given in support of the offer made. The witness Miller testified: That he remembered putting up lumber for the defendant, and there was a large amount of it. It was delivered some time in the winter of 1893. Defendant gave his orders, and the lumber was loaded, and started off for Walton street. It was for Eager and Phelps. It was all taken out of the yard. And the witness added:

> “Kept my measurements of loads by the piece. The thick lumber was in pieces, and the boards were in feet. Kept memorandum of these loads in a book, and charged them up every night. I took them to Mr. Bannon. He was the bookkeeper. I called them off to him. I have not the book. It was in the office, and it was burned up. ::: ::: * My business was salesman, and I was located in the yard. I took most of the defendant’s orders directly from him. He might have telephoned some of the orders. I don’t think he left half of the orders in the office. Wouldn’t swear he did not. I think he gave the bulk of them direct to me, and I recorded them upon my book, and no one had charge of that book but myself. * * * The fire was in 1894. I called off the record I made in my book to the bookkeeper, Mr. Bannon, every day. I crossed off my book. The price I called, 1 read from my book. I was watching him write,—standing beside him,—and after he had recorded, or undertaken to record, what I had given him.”

Baker, one of the plaintiffs, testified that the defendant was at his office in regard to the lumber in question. He added:

> “I made an arrangement with him in regard to it some time in the month ' of January, 1893. I think the arrangement was, he was to have hemlock de*646livered on the premises for $11.75 per thousand. I saw some of the lumber after it had been delivered. It was delivered in large quantities. I saw some of it on the ground. Was there occasionally while it was being delivered,, and know some of it was delivered. T know that we presented bills as we wanted money. He raised no objections to the lumber. I only know the number of feet delivered from the books. Our employes made the entries in the books.”

This witness also testified:

> , “While he was getting lumber for the Phelps building, he got some for the Eager building. I think I personally presented no bills to the defendant. I could not say. I talked with him about his indebtedness to us. That business was left to the bookkeeper part of the time, and part of the time I presented them. I know they were presented. * * * One time Mr. Loring came to the office, and a bill was handed to him. I know I would sometimes take bills and present them. I think I did personally to Mr. Loring. I think I presented bills personally to Mr. Loring. I saw Mr. Loring several times in regard to the payment of this bill.”

The witness also testified:

> “It is my recollection that the bills were itemized.”

And he says:

> “The itemized delivery books spoken of by Mr. Miller were burned. The one Miller kept was burned. My ledgers were saved from the fire. In them the transactions are carried down, but not itemized.”

The plaintiffs called the witness Bannon, who testified that he had charge of the books, and that he had the ledger present in court, and he added:

> “I am acquainted with Mr. Miller, who has testified. Late in the afternoon he would come into the office and read off his charges, and I would write them down. They were put on the daybook, and that book was burned. I posted from the daybook into the ledger, giving the aggregate amount only in dollars and cents. The computations were made by myself. I made them correctly, and carried them out on the ledger as I made them. There are about seventy-five separate charges. Nine-tenths of the lumber was two-inch planks. They used the timber, and then laid the brick. I am not able to state the aggregate amount of those items without reference to the books. By referring to the books, I can state the amount. I know the prices charged; hemlock, $11.75, large percentage. There might have been two or three thousand feet that was not hemlock. I prepared and presented or mailed to Mr. Loring itemized bills, or handed them to Mr. Baker. I know there were itemized bills of this entire lumber sent by mail or given to Mr. Loring.”

Subsequently the witness Baker was recalled, and he testified:

> “The prices that were charged were agreed upon between Mr. Loring and myself. I am not positive whether there was a special understanding in regard to those different items. The salesman and bookkeeper knew the prices. I fixed the prices, and my workmen worked under them. Mr. Ban-non knew the prices.”

The witness Bannon was then recalled, and he testified:

> “I made the charges for this lumber at the market price, except the hemlock. The lumber was charged at the market price.”

After this evidence was given the witness testified that the bill of items was in his handwriting, and that it was an exact copy of the ledger, and that the footings were the same as those in the ledger. Thereupon the defendant’s counsel conceded that the bill of items is a copy of the two columns of the figures of the ledger. The wit*647ness added, “The aggregate amount charged is $2,551.73,” and- that the amount deducted for payment was $1,550, leaving a balance of $1,071.73. In the course of his cross-examination he said:

> “I made out the itemized statements of this account against Mr. Loring on-two or three different occasions, before and after the Phelps job was finished. I presented one to him. He said nothing about it. He came into the office two or three times, and talked about payment.”

After this proof was given, we think the learned referee committed no error in refusing defendant’s motion for a nonsuit. The defendant was sworn as a witness in his own behalf, and, in the course of his testimony, said:

> “I received itemized statements of the lumber delivered for the Phelps and Eager buildings. I don’t remember they were presented personally by Mr. Baker.”

And he added:

> “I .have had many talks with Mr. Baker since the lumber was sold for the Phelps building. The question of the quantity of lumber did not arise. I have never made any objection to him that the quantity of lumber was not delivered. I was generally at the building twice a day. I knew Mr. Baker-was delivering lumber. Mr. Baker has talked with me about paying these bills. The amount of the bill has been presented to me. I understood the amount.”

The witness further testified:

> “When the bills came to me, I turned them over to Mr. Coon. He has made no detailed report.”

The witness Coon, who was called by the defendant, testified, viz.:

> “During the erection of the Phelps building, defendant gave me bills he had received from, plaintiffs. The bills he gave me was one of those large foolscap bills,—two or three pages. * * * I received the lumber. I did not measure it. * * * The long bill was presented by Mr. Loring to me during the summer, after the work was finished. There was a large quantity of lumber used.”

It appears by the testimony given by the plaintiffs that all the lumber charged to the defendant was “what was delivered on the Eager and Phelps jobs.” We think the conclusion of fact stated by the referee, to the effect that the defendant is indebted to the plaintiffs, for balance due, in the sum of $998.23, with interest thereon from June 13, 1894, is sustained by the evidence, and that the conclusion of law—that by reason thereof the plaintiffs are entitled *to*recover—should be sustained.

Judgment affirmed, with costs. All concur.