
    Harvey B. Swan, Resp’t, v. David L. Brewster et al., Adm’rs, App’lts.
    
      Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. VeNdok'and vendee—What is not sufficient to support finding of indebtedness on part of vendee.
    This action was brought against the administrator of an intestate to recover payment for certain articles alleged to have been sold to the intestate. Held, that the admission on the part of the deceased that he purchased the articles was not proof of an existing indebtedness, the admission being equally consistent with a purchase for cash as for credit.
    2. Same—Change of possession of article—Not sufficient to charge SUBSEQUENT POSSESSOR WITH DEBT FOR PRICE.
    
      Held, that the fact of possession of the articles by the alleged vendor and their subsequent possession by the intestate, was equally consistent with a sale on cash or on credit.
    Appeal from a judgment entered upon the report of a referee.
    
      C. D. Gregory, for app’lts; O. M. Hungerford, for resp’t.
   Learned, P. J.

There is no reason to question the correctness of Porter v. Smith (21 Week. Dig., 210, affirmed in the court of appeals, 27 Week. Dig., 549). But it is not quite applicable to this case. After the plaintiff had given his evidence to support his claim, the defendant asked the referee to rule and decide that the sixth and seventh items (which are the only items sustained), had not been sustained or established by proof. The referee refused and the defendant excepted.

The plaintiff then rested and the defendant moved for a non-suit. On that motion they specified as the second .grounds that the admission of deceased that he bought the liorses from plaintiff or that they came from plaintiff, or that he got the horses from plaintiff, was not an admission of existing indebtness. And as the third ground that the fact that the horses are shown to have been owned by or in possession of plaintiff and subsequently owned by and in possession of deceased is no legal proof of his existing indebtedness from the estate of the latter. The referee denied the motion and the defendants excepted.

The evidence previously given to support the sixth and seventh items was of the character described in these second and third grounds of defendants’ motion. We think it is fairly to be understood that the referee decided as a matter of law that such admissions and such facts of possession were legal proofs of an existing indebtedness.

If that decision was correct, then his findings must be sustained. If that was incorrect, then a question of law arises which we may examine. An admission that one bought property from another is not an admission that it was bought in credit. Such an admission is equally, if not more, consistent with the fact of payment at the time. It is true that when the existence of an indebtedness has once been shown, then payment is an affirmative defense. But that principle is not to the point here. The question is, whether proof that one bought an article from another, or had it from another, is any proof that the buyer owes for it, or ever owed for it. He might buy for credit or he might buy for cash. And to buy is as no more proof that the purchase was on credit than that it was for cash. It would be a dangerous principle, especially against the estate of a deceased, that an admission that one had bought a thing was any proof, that he even owed for it, and did not pay when he bought. The same in substance may be said of the fact that the horses had at one time belonged to, and been in the possession of, the plaintiff, and were afterwards in the possession of the deceased. This fact is as consistent with a purchase for cash as with a purchase for credit.

•The plaintiff relies on the evidence that when the bay team was delivered to deceased, it is not shown that any payment was made. But that delivery was made not by plaintiff, but by a man who was keeping the horses for plaintiff. That delivery was no part of the contract of sale. The man who delivered them is not shown to have had any authority to make a sale or take payment, or give credit.

We are of the opinion that the judgment should be reversed, new trial granted, referee discharged, costs to abide the final decision of the court in respect thereto.

Landon and Ingalls, JJ., concur.  