50 Misc. 345 | N.Y. App. Term. | 1906
The plaintiff sued for goods sold and delivered, alleging the' sale and delivery of thirty-nine barrels of a certain manufactured product known as casein.' The defendant, denying the contract set forth in the complaint, alleged an agreement for sale by sample; that thirty-nine barrels were received; that they did not conform to the sample, and that they were for that reason rejected. A counterclaim was also pleaded for freight paid' on the barrels received. At an early stage of the trial the plaintiff conceded, and indeed the evidence clearly showed, that the sale had been by sample, and the only point litigated was:whether or not the merchandise delivered came up to the sample. The only evidence upon that point was that which was given by the defendant, and it was all to the effect that the casein in thirty-four out of the thirty-nine barrels fell below the sample and was practically worthless. The learned justice in the course of his charge instructed the jury as follows: “ The burden of proof, prdinarily, in a case for goods sold and delivered is upon the plaintiff; but, in an action of this character where the defense is that the goods are not up to sample, the burden shifts from the plaintiff to the defendant and it becomes the duty of the defendant to satisfy you, by a fair preponderance of the evidence, that the goods were not up to sample.” This was duly excepted to, as was the court’s refusal to charge that it was' the duty of the plaintiff to establish that the goods delivered by him were up to sample under which the sale was had, and the charge and refusal to charge are now called in question as reversible errors. The charge in the particular noted was obviously erroneous and cast upon the defendant a burden which it
The judgment must be reversed and a new trial granted with costs to appellant to abide the event.
Tbuax and Bischoee, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.