
    Alfred Shrimpton & Sons, Limited, Resp’t, v. Abraham J. Dworsky, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Appeal—Waives ov objection.
    Having on the trial treated an issue as in litigation, when otherwise it might have been introduced, a party may not be heard to say on appeal that it was not in the action.
    2. Sale—Evidence.
    The complaint alleged that the plaintiff "sold to the defendant goods, viz.-, fifty gross needle-books.” On the trial, plaintiff, without amendment, was allowed to prove that the contract was not for the sale, but for
    
      the manufacture of goods. It appeared that needles were the goods contracted to he sold; that they were to he delivered in envelopes; that the needles and envelopes were in stock, and nothing remained but to print on the envelopes certain words. Held, that the evidence showed that the contract was simply for the sale of goods.
    3. Same—Acceptance.
    In such case, plaintiff, for evidence of due acceptance, relied upon the fact that defendant receipted for the case of needles as “in good order,” and said, “it is all right,” hut, it was uncontradicted that the needles were not in fact delivered to defendant, hut were left on the side-walk; that he never saw them, refused to receive them and returned them to plaintiffs’ place of business. Held, that the proof of acceptance was insufficient to authorize a submission of the issue to the jury.
    Appeal from judgment of the general term of the city court, affirming judgment for plaintiff on a verdict, and from an order affirming order denying a new trial.
    Action for goods sold and delivered.
    
      Francis B. Chedsey, for app’lt; George C. Coffin, for resp’t.
    
      
       Reversing 48 St. Rep., 937.
    
   Pryor, J.

In form and in substance, the action is for goods sold and delivered, and for nothing else. The allegation of sale and delivery is traversed by an explicit denial in the answer. This, then, was the issue, and the only issue, presented by the pleadings, namely: Whether the plaintiff had sold and delivered to the defendant the goods for recovery of the purchase price of which the action is brought.

Nevertheless, upon the trial, the plaintiff was allowed to give evidence of a different cause of action; that, is,-for work and labor; and in submitting the case to the jury the judge expressly charged, that “ if the goods were not in existence at the time of the purchase, but had to be manufactured, then this case does not come within the statute of frauds.” To this instruction the defendant dilly excepted; and he excepted, also, to evidence in support of an action for work and labor, on the grounds that “ it is irrelevant, incompetent and immaterial,” and that “ the action is brought for goods sold and delivered, and proof of manufacturing, is improper.”

True, the defendant did not, in terms, claim a “variance" between the pleadings and proof; nor could he have appropriately urged such claim, because here was not a variance, but a failure of proof of the cause of action formally in litigation. Code, § 541., Furthermore, on the conclusion of plaintiff’s case, the defendant moved for a dismissal, on the ground “ that there is no proof of the delivery of the goods to the defendant sufficient to satisfy the requirements of the statute of frauds. ” We are unable to conjecture how the defendant could have more unequivocally presented the point that the evidence was directed to a cause of action not alleged in the complaint, and that there was not the requisite correspondence between the pleadings and the proofs.

No amendment of the complaint was made or moved; and the question is, whether, against the protest of the defendant, a plaintiff may claim upon one cause of action and recover on another ?

In this state the question is no longer open to controversy. In Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864, the court of appeals held that, where an objection has been properly taken, or an exception presents the point, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings, saying (page 652): “ It is a fundamental rule that judgment shall be secundinn allegata etprobata," and that “if a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.’’

Here two distinct and independent causes of action were alternatively submitted to the jury, upon either of which they were told, in effect, they might return a verdict for the plaintiff. But one of these causes of action, being foreign from the case, did not authorize a recovery by the plaintiff; and, as it cannot be ascertained upon which cause of action the jury found for the plaintiff, we are unable to say that the defendant has not been prejudiced by the erroneous rulings on the trial.

We are of the opinion, therefore, that upon the ground indicated the judgment should be reversed.

But other consideration touching the merits of the controversy conduct to the same conclusion.

The defendant resisted a recovery against him upon the ground that the contract in action was for the sale of goods, and was invalid for want of due delivery and acceptance.

It is argued, however, that the invalidity of the contract under the statute of frauds not being pleaded, the defense was unavailable by the defendant. Wells v. Monihan, 129 N. Y., 161; 41 St. Rep., 409; Crane v. Powell, 46 St. Rep., 668. The answer is, that the point was not taken by the plaintiff on the trial; but, on the contrary, the question of the validity of the contract was litigated by the parties, and considered by the court, as an essential issue in controversy. At the instance of the plaintiff himself, the court charged that if the goods were not in esse, but were to be fabricated, the contract was not within the statute of frauds. After this explicit concession on the trial, that the validity of the contract under the statute of frauds was in issue, and in controversy, with what consistency or justice can the plaintiff be suffered on appeal to say that • the question is beyond the scope of the pleadings? Had the plaintiff raised the objection on the trial, non constat but the court would have allowed an amendment of the answer. Having treated the issue as in litigation, when otherwise it might have been introduced, the plaintiff may not now be heard to say that it was not in the action. Effray v. Masson, 45 St. Rep., 296.

Assuming, then, the defense of the statute of frauds to be before us for consideration, we are of opinion that it was established by the undisputed evidence.

The complaint alleges that the plaintiff “ sold to the defendant goods, viz.: fifty gross needle books.” If ever a party is to be bound by his pleading, the plaintiff is estopped to say that the contract was not for the sale, but for the manufacture of goods. And although, without amendment, he was allowed on the trial to prove that the goods were not in existence, his evidence clearly establishes the contrary proposition. The needles was the thing contracted to be sold; and although they were to be delivered in envelopes, these wére in stock; and nothing remained but to print on them “Empire Stationery and Novelty House, New York.” Indisputably here was a contract for the sale of goods and nothing more. Passaic Man. Co. v. Hoffman, 3 Daly, 495, 504; Flint v. Corbitt, 6 id., 429; Cooke v. Millard, 65 N. Y., 352, Kellogg v. Witherhead, 6 Thomp. & C., 525; Fitzsimmons v. Woodruff 1 id., 3; Smith v. N. Y. C. R. R. Co., 4 Keyes, 180 ; Lamb v. Crafts, 12 Metc., 353; Clark v. Nicholas, 107 Mass., 547; Gardner v. Joy, 9 Metc., 177; Cason v. Cheely, 6 Ga., 554 ; Atwater v. Hough, 29 Conn, 508; O'Neil v. Mining Co., 8 Nev., 141; Finney v. Apgar, 31 N. J. L., 266. Warren Chem. Co. v. Holbrook, 118 N. Y., 587; 29 St Rep., 848, is not contra.

The contract being within the statute of frauds, the question is, would the jury have been justified, on the evidence, in finding an acceptance of the goods by the defendant? The point was duly raised by a motion to dismiss as well as by requests to charge.

For evidence of due acceptance, the respondent relies upon the fact that the defendant receipted for the case of needles as “in good order.” and said “it is all right.” But it is uncontradicted that the needles were not in fact delivered to the defendant, but were left on the sidewalk; that he never saw them ; that he refused to receive them, and returned them to the plaintiff’s place of business. The proof of acceptance was insufficient to authorize a submission of the issue to the jury. Shindler v. Houston, 1 N. Y., 261, 271, 273 ; Cooke v. Millard, 65 id., 352, 357-8 ; Caulkins v. Hellman, 47 id., 449, 452; Stone v. Browning, 51 id., 211, 214-215 ; S. C., 68 id., 598, 604; Heermance v. Taylor, 14 Hun, 149, 151; Fitzsimmons v. ’Woodruff, 1 Thomp. & C., 3; Kellogg v. Witherhead, 6 id., 525. In Jones v. Reynolds, 120 N. Y., 213 ; 30 St. Rep., 881, the buyer took the model into his possession, retained it for a year without returning or offering to return it, and solicited a patent on the basis of it. Of course the court held that there was evidence of acceptance for the jury; but the ruling is obviously inapplicable to the case before us.

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

Daly, Ch. J., and Bischoff, J., concur.  