
    Hiram B. Aylsworth, Resp’t, v. James Gallagher, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Sale—Goods sold by sample—Account stated — What constitutes — Evidence—When general term will amend pleadings to conform to proof.
    In an action to recover a balance due for goods sold and delivered, when it appeared from the evidence that the defendant had offered to pay-balance if the plaintiff would credit him with certain goods returned, and the plaintiff rendered an account giving such credits, and the court directed a verdict for the balance, less such credits, Held, that such offer of compromise, and plaintiff's acceptance, constituted an account stated, and although the action was brought on a different principle, yet no objection having been raised on the trial to the introduction of this evidence showing an account stated, the court, at general term, will amend the pleadings to conform to the proof for the purpose of supporting the judgment.
    Appeal from judgment entered upon direction of verdict for the plaintiff.
    
      W. C. Reddy, for app’lt; D. M. Porter, for resp’t.
   Van Brunt, P. J.

—The plaintiff is a wholesale dealer in boots and shoes, doing business under the name of Congdon Aylsworth, at Providence, Rhode Island, and special agent for the sale of the rubber goods of the National Rubber Company. The defendant is a retail dealer in the •same goods in Westchester, in this state. In June, 1886, the plaintiff sent by mail to the defendant a circular letter in which the character and quality of the goods proposed to be sold are designated, and from which it appeared, that the National Rubber Company offered to make cases of sample goods, and that the plaintiff was then prepared to send out such samples.

The defendant received a box of these samples, and thereupon sent an order for certain of the goods by mail to the plaintiff at Providence. Upon the receipt of this order, the plaintiff selected his goods from the stock on hand and shipped them to the defendant at Westchester. By the terms of the plaintiff’s letter, the goods were to be paid for by two installments, viz., November 15 and December 15, 1886. The goods were received about September, and no ■defects being then discovered, defendant made a first payment of $125 on November 15th. Before the second payment became due it is claimed, upon the part of the defendant, that certain defects appeared in some of the goods sold, and that they were returned to the defendant by the purchasers and other goods given in their place in some instances, and in others he attempted to mend them.

On December 17th he notified the plaintiff of the defects. The plaintiff requested the defendant to send by mail a sample that had proved defective, which was done. Further correspondence took place, and defendant sent back a portion of the goods, and on January 21, 1887, notified the plaintiff that all the goods which he had on hand awaited his order for shipment.

On the 11th of April, 1887, the defendant wrote to the plaintiff’s counsel stating that if the plaintiff gave him credit for the seventy-four pairs of rubbers returned, he would pay the balance of the bill.

In August, 1887, the plaintiff rendered the defendant an account, giving him credit for the seventy-four pairs of rubbers, stating that they had decided rather than spend any money in law to settle the account as above. This-sum not being paid, this action was brought to recover the-balance unpaid upon the original bill.

The court, upon this evidence, directed judgment in favor of the plaintiff for the balance of the account, after giving credit for the seventy-four pairs of rubbers. A considerable amount of discussion has arisen in this case as to whether there was a warranty as - to the qualtity of the goods or a breach of the warranty, and as to whether the defendant had a right to recover damages for the breach thereof. But it does not seem at all necessary to discuss these questions, as the case seems to have been disposed of upon an entirely different principle. It is apparent that the learned judge was of the opinion that by the offer of compromise made in April by the defendant, and its acceptance in August by the plaintiffs, an account became stated as between the parties, and that the plaintiffs were entitled to recover the amount of such account stated and no more. In this he seems to have been correct.

It is true the action was brought upon a different principle, but no objection was raised to the introduction of the evidence showing this account stated at the trial, nor was-any question made at the time of the disposition of the case, that under the pleadings no such cause of action was set forth. Under these circumstances, it is the duty of the court at general term to amend the pleadings to conform to the proof for the purpose of supporting the judgment.

The judgment appealed from should be affirmed, but. under the circumstances, without costs.

Brady and Daniels, JJ., concur.  