
    Albert A. Brock, App’lt, v. Joseph A. Aspenleiter, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Fox-suit—Sale.
    In an action for butter sold, the plaintiff, after testifying to the sale and' delivery, testified that when he first began to deal with defendant he asked him if he would take butter if plaintiff would take clothes, which was-agreed to, and that his understanding was that all the butter furnished waste be credited on account. The court drew the inference from this testimony that the butter was sold to be paid for in clothes, and that as no default on defendant’s part was shown there was a failure of proof, and granted a non suit, held, no error.
    Appeal from the judgment of the Monroe county court, affirming the judgment of the municipal court of the city of Rochester.,
    
      C. W. Allen, for app’lt; James L. Hotchkiss, for resp’t.
   Lewis, J.

This action was brought in the municipal court of Rochester to recover $70.78 for butter sold and delivered by the plaintiff to defendant.

The plaintiff was non-suited, and an appeal was taken to the county court of Monroe county from the judgment of non-suit on questions of law only ; the judgment was affirmed by that court and an appeal was taken to this court. All the evidence came from the plaintiff. He was a dealer in butter; the defendant was in the clothing business.

The plaintiff testified that lie first began to deal with the defendant in 1889. “I asked him (meaning the defendant) if he would take butter of mo if I would take clothes; it was to the effect that he wanted huttcr, and I told him if he could use butter it would help me, it would be as good as cash ; he said, all right. The butter and clothes were all part of our transaction.” “ I. have no memorandum oí the clothes I bought of him; I have never rendered to defendant a statement of my account, and have never demanded payment of that. My understanding of the talk I and this defendant had was, that all butter I furnished was to be credited on account.”

The trial judge drew the inference from this evidence that the butter was sold to be paid for in clothes, and there being an absence of any evidence that the defendant had failed to keep his part of the contract he concluded that the plaintiff had failed to make a case, and hence granted a non-suit, and we find no reason for disturbing the judgment.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Macombeb and Haight, JJ., concur.  