
    Romine O. Bush, Resp’t, v. Humphrey Folks, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Counterclaim—Breach of warranty on sale of seed.
    In an action against him defendant counterclaimed for damages sustained by reason of certain tobacco seed, alleged to have been purchased of plaintiff by him and represented to be of a particular variety, turning out to be of inferior quality. The evidence showed that defendant purchased said seed of one G., who purchased of plaintiff, and who did not claim to be buying for defendant. Held, that as there was no purchase by defendant of plaintiff, either personally or by G. as agent, no right of action accrued to defendant and his counterclaim could not be sustained.
    Appeal by the defendant, Humphrey Folks, from a judgment of the county court of Cayuga county, entered September 23, 1890, affirming a judgment of a justice of the peace, dated August 20, 1889, which was given in favor of the plaintiff against the defendant for the sum of two dollars and costs.
    
      James Wright, for app’lt; A. W S hurtleff, for resp’t.
   Macomber, J.

The complaint before the justice of the peace-was for an indebtedness of the defendant to the plaintiff in the sum of two dollars for the use of a drill.

The answer was a general denial; and secondly, a counterclaim to the effect that in the spring of 1884 or 1885 the plaintiff sold and delivered to the defendant certain tobacco seed and represented such seed as “ Wilson Hybrid,” a superior kind of tobacco, and the same turned out to be inferior quality and not “Wilson Hybrid,” to the damage, as was claimed, to the defendant, of $150. Waiving the tort, the answer demanded judgment upon the counterclaim in the sum of $150, besides costs.

The only question upon this appeal relates to the counterclaim interposed by the defendant in his answer. The tobacco seed mentioned in the answer, it is shown by the defendant’s own evidence, was bought not by him of the plaintiff, but by him of one Grant who, in turn, obtained the same from the plaintiff. Grant-testified in substance that he bought the seed from the plaintiff; and that the plaintiff said it was “ Wilson Hybrid.” He did not tell the plaintiff that he was buying the seed for the defendant. But he did state to him, that certain other seed which he bought of the plaintiff at the same time was for one Smith. The testimony of the witness Grant is not altogether harmonious in its parts upon the question here presented, but we think on the whole that the justice was justified in taking the view above expressed, as he must have done in rendering the judgment appealed from. As there was no purchase of this seed by the defendant of the plaintiff, either personally or by the means of Grant as his agent, it follows that no right of action here set up by way of counterclaim in the answer accrued to the defendant. It follows, therefore, that the judgment appealed from should be affirmed.

Judgment of the county court of Cayuga county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.  