
    Milton Rathbun, Respondent, v. Anton Majewski, Appellant.
    
      •Goods sold — delivery to a third person—submission to the jury of the question who is obligated to pay therefor.
    
    Where there exists such a conflict in the testimony of two parties who had negotiated a sale of.certain hay and oats, as to whether the purchase was made upon the credit of one of the parties or upon that of a third person at whose stable they were delivered, -as requires the submission of that question to the jury, considered. . ■
    Appeal by the-defendant, Anton Majewski, from a judgment of. the Supreme Court in favor of the. plaintiff for $370.39, entered in the office of -the clerk of the county of Hew York on the 26th day June, 1896, upon the verdict of a jury, and also from an order, bearing.date the 24th day-of June,. 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon thd- minutes.
    
      Edward S. Johnston, for the appellant.
    
      George Ryall, for the respondent.
   Parker, J.:

This action was brought to recover the' sum of $254.32, the agreed price of hay and oats, which the plaintiff claims to have sold to the defendant. The answer denied any agreement on the part of the defendant to pay for the hay and oats. It appeared without dispute upon the trial that one Conkling was the owner of the contents of a livery stable, at which the hay and oats were delivered ; that this defendant was the holder of the first and third chattel mortgages on stock in the stable, aggregating in amount about the sum of $7,000, and that he sought.out Frank J. Lennon, an employee of the plaintiff, asking him his price for hay and, oats. The result of the conversation was the delivery of a quantity of both hay and oats at Conkling’s stable. As to the nature of that conversation, Lennon, plaintiff’s employee, and the defendant differ very widely. Lennon testified that at the interview brought about by the defendant, which took place at his office in Goerck street, inquiry was made as to his price for hay, and that when he made answer the defendant said: “ That is considerably less than I am’ paying. This man that has been supplying me with hay has been robbing me, charging me $1.10, and your price is only 95 cents.” He further testified that in the course of that conversation the defendant gave him as a reason for running Conkling’s. Stable, “ that he held a first mortgage on the stock and also a third, mortgage, and he said that he found out from investigating things that the employees of Mr. Conkling were robbing him, and that if they continued to rob him that he would never be able to get his money out of it, and he said, ‘For that reason I have taken charge,’ 'and .he says;- ‘ I am going to see that there is no stealing done,’ and ‘ I am going to buy things from whom I can buy them the cheapest. Come down every two weeks for every thing you sell and I will pay you your money.’ He took a bill off the file in his office and he showed me ‘ There is the feed-man’s bill for the previous two weeks receipted.’” Lennon also asked the defendant for his name and address, and he testified that the defendant tore off a bill from a pad lying on' the desk and said, Make out a bill for me and send me the feed to the stable in Man-gin street, and send me the bill and about every two weeks come down here and get your money.” Lennon testified that he followed the defendant's directions, and that hay and oats of the value claimed in the complaint were delivered from time to time, and after each delivery bills were sent to the defendant as requested, but no 'part thereof was paid. When payment was finally insisted upon the defendant claimed that collection must be made from Conkling or not at all. If Lennon states the conversation and transactions correctly the plaintiff’s right to recover was clear.

The defendant, while not disagreeing with the plaintiff’s witnesses as to the manner in which they came to meet, or as to'which one introduced the subject of buying hay for Conkling’s stable, denies having had such a conversation with Lennon as he testifies to, or that, in words or substance, he agreed to purchase of him hay and oats for Conkling’s stable. From his testimony it appears that he would have had the jury believe that the not only did not purchase the merchandise of the plaintiff, but that he cautioned plaintiff’s employee that Mr.. Conkling was slow pay, and that after such caution, to prevent any possible misunderstanding, he added, “ I told him he would have to look out for his money from Mr. Conkling.” If the defendant’s story was true the plaintiff: was not entitled to recover.

Thus an issue of fact was presented which was submitted to the jury in a charge by the court, to which no exception was taken, and their verdict was for the plaintiff. As no errors were committed by the court the verdict must stand, unless against the weight of evidence, and we have no hesitation in deciding that it was not.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  