
    Philo W. Thayer, Respondent, v. Asbury Cable, Appellant.
    
      Goods sold—form, of complaint where goods wre charged to employees of the.defendant— when a, promise is original — effect of a former judgment between the same . parties, although not pleaded.
    
    Under a complaint declaring generally for goods sold and delivered by tbe plaintiff to the defendant,-the plaintiff may prove by parol an arrangement by which part of the goods in .question, which was furnished to employees of the defend- . ant, was to be regarded as sold, and was to be charged directly to the defendant; such .an'arrangement is an original undertaking..
    A judgment between the.same parties, and involving, the same arrangement as to • the manner of charging goods sold to employees of the defendant, is compe- ■ tent evidence: of the facts established by it in an action previously begun, although the judgment he not pleaded, in such action. ...
    Herrick,. J.s dissented.
    
      Appeal by the defendant. Asbury Cable, from a judgment of the County Court of Delaware county in favor of the plaintiff, entered in the office of the cleric of the county of Delaware in March, 1896, upon the report of a referee.. .
    
      A. G. Patterson, for the appellant.
    
      E. H. Hanford, for the respondent.
   Merwin, J.:

The recovery is for goods sold and delivered by the plaintiff to the defendant personally,- or to his employees by his direction and upon his credit. There is no dispute except as to the goods delivered to two of the employees, Kelsey and Hawkins.

Three questions are raised: (1) Whether under the complaint proof was admissible for the purpose of showing an arrangement between plaintiff and defendant for the furnishing by plaintiff to defendant’s employees of goods and charging them to defendant, and showing that plaintiff, acting under this arrangement; furnished: to the employees the goods in question and charged them to the defendant; (2) whether the proof sustains the findings of such an agreement, and (8) whether the judgment before a justice of the peace, between the same parties for goods furnished under the same arrangement, after the commencement of the suit was competent.

. 1. The complaint is for goods sold and- delivered by the plaintiff to the defendant between certain dates. A bill of particulars was served giving the items in detail. This bill is not in the case. It may be inferred from the evidence that in the books of the plaintiff, and in the bill as served the name of the employee was entered.in-cases where it was claimed the goods were delivered to employees, Sales made under the arrangement, as claimed by plaintiff, were in effect made to the defendant, the same as if made upon the direct order of defendant. It was an ■ qriginal undertaking, on his part, The goods were at the time charged to defendant, and the referee finds that the sales were in fact made to the defendant. The findings of the referee on this subject are to be construed together. Ordinarily, facts may be pleaded as they actually exist, or according to their legal effect, at the option of the pleader. (New York News Publishing Co. v. Steamship Co.,148 IN. Y. 39.) The undertaking being original, the plaintiff might declare generally. (Northrup v. Jackson, 13 Wend. 85.) The defendant was not misled.The complaint, amplified as-'it was by the bill-of particulars, was, think, sufficient. (See McMahon v. Sherman, 14 N. Y. StRepr. 637.)

2. The finding of the arrangement, as claimed' by the plaintiff, was, 1 think, sustained by. the evidence. The evidence of .the plaintiff himself supported it, and he was sustained by the judgment in the Justice’s Court.

3. Was the justice’s judgment competent ? ' It was between the same parties, and involved the " question whether" the arrangement, as claimed by. the plaintiff in this action, was in fact made. Both sides agree that there was in fact but one' arrangement. The goods claimed for in' the justice’s action were furnished to Kelsey, and under the ’ same arrangement ás claimed in .this action, and was in substance a continuance of the same deal. It is suggested that the arrangement was sworn to before the justice as being in April, 1894, at plaintiff’^ house-, while in this action it was said to be in February, 1894, at plaintiff’s store. Before the justice it was said to have been near the .store, and in this action plaintiff, on being recalled, placed the date as about February or March, 1894. Clearly, the-referee hadl a right to find that, as there was. but one arrangement, the evidence in the two Cases referred to' the saíne arrangement;

If in an -action for an installment of rent, the validity of the lease is questioned and established, the judgment is binding in actions for futui-e installments. .(Ackley v. Westervelt, 86 N. Y. 452.) So as to a contfact for advertising. (Ibbotson v. Sherman, 10 J. & S. 477.)

The former judgment is evidence of the -facts established thereby though not pleaded. (Krekeler v. Ritter, 62 N. Y. 372. See, also, Embury v. Conner, 3 id. 511; Doty v. Brown, 4 id. 71.) The fact that the justice’s suit was after-tlie. commencement of this action does not change the rule (Gates v. Preston, 41 N. Y. 113), nor that the. subject-mattér may be different. (Castle v. Noyes, 14 N. Y. 329.)

The justice’s judgment was, I think, admissible.

All concurred, except Herrick, J., dissenting.

Judgment affirmed, with costs.  