
    Watson, appellant, v. Parker.
    
      Contract—construction of.
    
    In an action for goods sold, defendant alleged, in his answer, that he had delivered a quantity of grapes to H. at the plaintiff’s request, which the latter agreed to apply upon his account against the defendant. The defendant proved that after having had a negotiation with H. about selling grapes to him, he told the plaintiff that H. wanted some grapes; that he asked the plaintiff if he could pay his account with the grapes he was about selling to H., trade out, or turn his grapes on his account, and allow his men to trade out part, or all of it, as he saw fit. To which the plaintiff replied in the afiirmative; whereupon the defendant delivered grapes to H. amounting to over §330. It was proved that H. did not assume any liability for the defendant to the plaintiff, and that he was still liable to the defendant for the grapes sold to him, except a small portion which had been paid for. Held, that the plaintiff did nothing more than consent to take H.’s liability instead of the defendant’s for the indebtedness of the latter; that the fair inference from the conversation was that if H. would assume the payment of the defendant’s present and future indebtedness, the plaintiff would take that and give the defendant credit for that amount. Mallory v. Gillett, 21 N. Y. 415. Held, also, that the plaintiff was entitled to recover the amount of his account. ,
    Appeal from a judgment in favor of defendant entered upon the report of a referee. The action was brought in Yates county by William H. Watson against Erastus W. Parker, to recover for grapes sold and delivered.
    
      I). B. Prosser, for appellant.
    
      Brown & Wood, for respondent.
   Gilbert, J.

The head-note fully states the only points passed upon in the opinion. o .

Judgment reversed and new trial granted.  