137 N.Y.S. 150 | N.Y. App. Term. | 1912
We think that the receipt and deposit of the voiicher checks reciting that the payments were “ in full,”
Again, the plaintiff failed to show the weights as returned by the mills. ' We do not say this was an essential part of plaintiff’s case, and defendant failed to show these weights, possibly because it was denied a commission to examine the witnesses at the mill. The written order provides that payments are to be made according to the weights shown by the returns from the mill. There is nothing inconsistent in the written and printed part of the order. p If there were, doubtless the written part would control. But they relate to different subjects — one; the written part, provides for delivery in Long Island City, the other, the printed part, for weighing by the mill. If the weight at Long Island City and the weight at the mill differed, it may be that plaintiff can explain it, or that the court will find that part of the goods was lost in transit. But we think it is clear that defendant had the right to show the weight at the mill.
Present: Kelly, Jaycox'and Clark, JJ.
Judgment reversed and new trial ordered, with costs to abide event.