| NY | Jun 6, 1876
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *310 The testimony of the plaintiff tended to show that the contemplated purchase of the wines by the defendants was never consummated. On his evidence it is difficult to determine that an action could have been maintained by the plaintiff for the price of the goods as on a contract of sale. But the General Term appear to have held that the rendition of bills for the wines, at the dates when they went into the possession of the defendants, and the subsequent receipt by the plaintiff of $32,272.63 on account of the price, and the claim for the balance as for goods sold, were such controlling circumstances that a verdict for the plaintiff would have been set aside, and, consequently, the nonsuit was properly granted.
If the facts were as assumed, the conclusion would probably follow. On an examination of the evidence, however, we find that it shows that the bills, although dated in 1866 and 1868, when the wines were placed in the custody of the defendants, were not rendered to them until February 26, 1870; and then, for the purpose of bringing them to a definite determination whether or not they would conclude the purchase, they having up to that time declined to give a definite answer. That the bills were not agreed to by the defendants, and that they failed in November, 1870, and before having agreed upon the price and terms of sales, and that they had, in the meantime, disposed of the wines. The alleged payment on account, if established, would have been a very strong, if not conclusive circumstance, to establish that there was a sale, and is relied *312 upon by the court below as a contradiction of the plaintiff's testimony. But the only evidence of this payment is the statement at the foot of the plaintiff's letter of July 28, 1870: "By amounts received on account, $32,272.63." The plaintiff offered to explain this credit, and testified that it alluded to note transactions between him and the defendants; but evidence as to what those transactions were, and of the facts upon which the credit was based, was excluded by the court and exception duly taken to the ruling. The tendency of the evidence thus excluded, as indicated by other evidence in the case, was to show that this credit was not in fact for payments made specifically on account of the alleged purchase, but for money due by the plaintiff to the defendants on other independent transactions which the plaintiff was willing to offset against the price of the wines. This evidence was material and was, we think, improperly excluded. It would have destroyed the effect of the credit acknowledged in the letter as an admission of a consummated sale and the receipt of payments on account.
There was some evidence in the case tending to show that the plaintiff had notice that the defendants were selling the wines, but, on the whole case, we think that if the credits were satisfactorily explained, there was sufficient to entitle the plaintiff to go to the jury, and that, in excluding the explanatory evidence and nonsuiting the plaintiff, there was error.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
All concur, except CHURCH, Ch. J., dissenting.
Judgment reversed. *313