
    Simon E. Zimmern, Resp’t, v. Edmund Heinecke, App’lt.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed December 17, 1891.)
    
    Sale—Trial—Direction op verdict.
    In an action for goods sold the defendant admitted the sale and value of the goods, but alleged that the sale was made on credit which had not expired. Defendant had the affirmative, and his witnesses testified that plaintiff, in order to make a sale, told defendant that he might have all the time he wanted; that what was not paid in four months he would wait a year for; that he had a year's time. At the close of the defendant’s evidence the court directed a verdict for plaintiff. Held, error; that from this uncontradicted testimony it was clear that the goods were sold on a credit, and what that credit was was a question for the jury.
    AppeAl from judgment in favor of plaintiff, entered on a verdict directed by the court
    
      Q. 0. GomstocJc, for app’lt; S. & B. Oppenheimer, for resp’t.
   McCarthy, J.

This action is for goods sold and delivered, and is to recover the sum of $923.87, the value and price of goods. It was begun on the 13th day of March, 1891, and the complaint alleges that the goods were sold between November 7 and November 11, 1890, and that at the time of the commencement of the action the price was due and owing plaintiff by defendant.

The answer admits that the goods were bought and admits also the value, but denies the allegation that at the time of the commencement of the action the money was due and owing, and as an affirmative defense alleges that the goods were sold and delivered upon a credit, and at the time of the commencement of the action the credit had not expired. Upon the trial the court decided that the defendant had the affirmative. The defendant opened the case, and put on his witnesses. After hearing these witnesses the court directed a verdict in favor of the plaintiff, to which direction the defendant duly excepted.

The whole point in the case is whether, under the evidence of the defendant’s witnesses as presented, the court had the right to say that the defendant had made out no case, that the facts presented were not such as to allow of any construction by the jury other than in the plaintiff’s favor.

At fol. 24 of the case, Mr. Heinecke, the defendant, swears that on ¡November 11 the plaintiff called in and asked him to buy some goods of him, when Heinecke told him “I buy only of one house so as not to be pushed. ” And the plaintiff answered “ Oh, you can buy goods of me and I will give you just as long as you want; I will give you a year’s credit.”

At fol. 26. of the case, Mr. Heinecke swears that three weeks later he told Mr. Zimmern to take his goods back; that he did not want them; that they were too high-priced. Mr. Zimmern then told him “You have plenty of time. I will give you a year’s time to pay if you have not got money; you are good enough.” “He said, he would give me a year’s time.”

At fol. 27 the defendant testified that after Christmas the plaintiff approached him for money and when he asked him why he should pay, the plaintiff said “ I don’t bother you. I am only in a little squeeze now. You have a year’s time. You will pay just as you have it.”

At fols. 28, 29 and 30, the defendant testified that in March the plaintiff called upon him and asked him for all of the money, when defendant reminded him that he, the defendant, had a year's time to pay ; the plaintiff answered him “that he wanted $150, because he was pressed then.” ■

On cross-examination the defendant testified at fol. 32 that he had been in the habit of buying goods on ten days credit, but that was only small parcels of one article, and that the reason he wanted a long time on this stock which was sold him by plaintiff was because he had just opened a new store and needed new stock, and that he would need a year’s time to pay for them.

One Sittner, another witness, testified that he was present when Zimmern, the plaintiff, came in to sell Mr. Heinecke his' goods, and they all told him, Zimmern, that Heinecke did not want to buy them on account of the payment; when Zimmern, the plaintiff, answered him that “ payment was all right, Heinecke could have the time as long as he wanted; he was perfectly good to him,” and said, “ What is not paid for in four months he could have a year to pay. ” This is found at fol. 44 of the case. Then on his cross-examination at fol. 53 of the case he says, “ that the terms on the bills given for the goods were one year.”

Stephen Sarbol, another witness of defendant, states he was also present when the terms were made between Zimmern and Heinecke. And at fol. 57 he states that he heard the plaintiff say that Mr. Heinecke was good; that he would wait for a year and not trouble him for the payment. And at fol. 59 that Ziramera said he would wait for a whole year.

Plaintiff did not call any witnesses.

It is clear from this evidence, uncontradicted as it is, that the goods were sold on a credit. What was the extent or time of that credit was a question for the jury, and should have been submitted to them.

Andrews, J., in Bagley v. Bowe,, 105 N. Y., 179; 6 St. Rep., 842, says: “ The question whether the j udge was authorized to take from the jury the question of fraudulent intent arising upon the extrinsic facts is to be. determined in view of the settled rule that to justify the court in directing a verdict in any case upon the facts, the evidence must be undisputed, or so certain and- convincing that no reasonable mind could come to any but one conclusion.

If there is ground for opposite inferences and a conclusion either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy. The trial court or the general term is authorized to set aside a verdict and direct the issue to be retried before another jury, if, in its judgment, the verdict is against the weight or preponderance of evidence; but in a case which of right is triable by jury the court cannot take from that tribunal the ultimate decision of the'fact, unless the fact is either uncontradicted or the contradiction is illusory or where, to use a current word, the answering evidence is a ‘ scintilla ’ merely.”

The case at bar certainly comes within this authority.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Yan Wyok and Fitzsimons, JJ., concur.  