Terwilliger v. Ontario, Carbondale & Scranton Railroad
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 21, 1893, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
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Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 21, 1893, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The action was brought to recover the purchase price of 1,224 railroad ties, alleged in the complaint to have been sold and delivered by the plaintiff to the defendant in the months of February and March, 1890, for the price of $602.55. The answer, among other things, alleges that the plaintiff, for a good and valuable consideration, authorized one Marvin D. Wheeler…
1Opinion of the Court
Andrews, Ch. J.
The principal question on this appeal arises on the exception by the defendant to the refusal of the referee to make any finding upon the question whether the plaintiff in the summer of 1889 authorized Wheeler to sell the ties to the defendant and apply the proceeds of the sale in payment for the timber which had been cut by the plaintiff, without authority, from Wheeler’s lands. The evidence upon this question was. conflicting. The defense rested substantially upon the assertion that such authority was given; that it was executed by a sale and delivery of the ties thereunder,…
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