Blendermann v. Wray

Seabury, J. (dissenting).

The jury having found that the plaintiff originally gave credit to the defendant and not to her husband, the fact is established that the defendant is indebted to the plaintiff. The only issue, about which there has been so much litigation, is as to whether the plaintiff can recover in the present form of action which is upon an account stated. Upon the first trial of this action, the court *120dismissed the complaint. Upon appeal to this court, the judgment entered upon the dismissal was reversed and a new trial ordered. In its opinion reversing the judgment, the court stated: “If the jury, upon consideration of all the evidence, determine that credit was extended to the defendant, then * * * it is a question of fact for the jury to determine whether, in view of the circumstances of the case, there was an account stated. (Towsley v. Denison, 45 Barb. 490, Lockwood v. Thorne, 18 N. Y. 285.)” Upon the last trial, the justice submitted the case to the jury upon the theory stated above, in a charge to which no exception was taken. There is no legal reason why the defendant should not be compelled to pay for the groceries which the plaintiff furnished'her.

The judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.