
    (69 Hun, 605.)
    RIDDELL v. CORNELL.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Trial—Findings—Weight or Evidence.
    In ejectment for land held by defendant under a paroi contract of purchase plaintiff testified that the vendor (plaintiff’s assignor) offered the land to defendant for $300, and defendant said he would take it. Defendant denied having a conversation with the vendor at the place named by plaintiff, but he did not deny that he offered $300 for the land. Held, that a finding that no price was agreed on was against the weight of evidence.
    Appeal from judgment on report of referee.
    Action by Le Roy Riddell against Peter Cornell. Prom a judgment entered in Steuben county in favor of plaintiff, defendant appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Eli Soule, for appellant.
    A. M. Burrell, for respondent.
   HAIGHT, J.

This action is in ejectment to recover the possession of real property from the defendant. The premises in question consist of about five acres of land, on which there was a stone quarry. It formerly constituted part of a farm of which one George Riddell held a contract of purchase from the then owners. George Riddell and the plaintiff were copartners, doing business under the name and style of George Riddell & Co. The contract for the purchase of the farm was taken in the name of George for the benefit of the firm, and the purchase money therefor was paid by the firm. Subsequently George Eiddell assigned his interest in the contract to the plaintiff, and thereupon the premises were conveyed to him in accordance with the provisions of the contract. The referee has found as facts “that the said George Eiddell, while he held said contract of purchase for himself and for said firm, and with the approval of the plaintiff, made a paroi contract with the defendant, by which he agreed to sell to the defendant, and the defendant agreed to purchase, the lands described in the complaint; but for what price it does not appear, and is not shown by the evidence given on the trial of this action. Hence I find that the defendant has not paid the sum to be paid by said paroi contract of sale to him. That defendant since said paroi contract of sale to him was made, and at the time of the commencement of this action, was in possession of said premises under the same, and by the consent, license, and authority of said George Eiddell and this plaintiff.” The defendant requested the referee to find as a fact “that George Eiddell agreed to sell the land described in the complaint to the defendant for three hundred dollars.” This request was refused by the referee, and to such refusal, and to the finding as made on that subject, exceptions were duly taken. It appears to us that these exceptions were well taken; that the request was in accordance with the conceded facts in the case, and should have been found; and that the finding that it does not appear and is not shown by the evidence given upon the trial what price was to be paid for the land is against the evidence. The plaintiff himself testified upon his direct examination that “in March, 1874, the defendant came to the drug store, and said he wanted to buy the stone quarry. George talked with him, and told him he would let him have it for three hundred dollars. Defendant said he did not want a written contract; that he had debts. George told him he would let him have the five acres for three hundred dollars, he to pay interest on it till paid for. Defendant said he would take it. That is the same land described in the complaint.” The testimony of the plaintiff as to the contract is the same as that alleged in the defendant’s answer, with the exception that he alleges that the $300 was to be paid in stone. The defendant was not permitted to testify as to the conversation had with George Eiddell, because of his death. He, however, showed by a number of witnesses the declaration of George to the effect that he had sold the defendant the quarry lot, and that he was to receive his pay therefor in stone. That the payment in stone was part of the agreement has been found by the referee.

The referee, in his opinion, refers to the testimony so given, by the plaintiff, and states that “a contract price nowhere appears, except in the testimony of the plaintiff, and it there appears as a price to be paid for three acres of the quarry, while the declarations of George Eiddell relate to five acres, and it was five acres that he reserved as having been sold to the defendant. Then the defendant had the possession and worked the five acres, and by directions of George Riddell the five acres were assessed to the defendant, and he paid the taxes on the five acres, and fenced it. Then the defendant denies that any such conversation as the plaintiff testified to took place.” The referee has mistaken the evidence in this regard. The plaintiff nowhere speaks of three acres, but, instead thereof, he said he would let him have the five acres for $300, and that it was the same land described in the complaint. The defendant did not deny that any such conversation as testified to by the plaintiff ever took place. They differed, it is true, as to the question whether the $.300 was to be paid in stone or not. The plaintiff had testified that the conversation took place at the drug store. The defendant, when asked to state whether he made the bargain “at the place stated,” answered that no such conversation took place at the store. We do not understand that he denied that he had a conversation with George in which George agreed to sell him the stone quarry lot, consisting of five acres, and that he was to pay therefor $300, for such was the conversation as he has alleged it in his answer. The referee further states in his opinion that he is unable to see how it could be found from the evidence what was the contract price to be paid by the defendant for the quarry, and consequently it is not necessary for him to make a finding as to the state of the accounts between the parties. Of course, if the amount that was to be paid for the land could not be ascertained, then it would not be necessary to ascertain the state of the accounts; but if, as we have shown, the contract price was $300, then the state of the accounts becomes material as bearing upon the question whether the plaintiff has been paid in full for the land, or any part thereof. The question of payment was the main one litigated upon the trial. Much evidence was taken as bearing upon that issue, and it should have been determined. The judgment reversed, and a new trial ordered, costs to abide the event. All concur.  