
    Mossberg and Granville Manufacturing Company, Respondent, v. George H. Morrill and Others, Appellants.
    
      Sale of a second-hand machine, to he fitted hy the vendor with extra gearing—proof that the machine had been operated hy a previous owner — that the corporation purchasing the machine had failed and had no further use for it.
    
    Where an action is brought to recover the purchase price of a second-hand rolling mill supplied by the plaintiff to the White Metal Company for which the defendants agreed to pay, and the defense interposed is that the rolling mill did not comply with the contract, and for this reason was not accepted by the White Metal Company and was returned to the plaintiff, testimony given by •one of the plaintiff’s witnesses to the effect that he had seen the rolling mill in operation at the establishment of the previous owner thereof, and that it was discarded by such previous owner only because he needed a heavier machine, is inadmissible when it appears that the contract for the sale of the mill to the White Metal Company provided that it should be fitted by the plaintiff with additional gearing.
    In such an action the admission of evidence that the White Metal Company had ceased to do business constitutes reversible error when it appears that it was offered for the purpose of impressing upon the jury the idea that the real motive of the defendants in defending the suit was because the White Metal Company had failed and gone out of business and, therefore, had no use for the machine.
    Appeal by the defendants, George H. Morrill and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25tli ■day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1901; ■denying the defendants’ motion for a new trial made upon the minutes.
    
      
      William It. Ironic, for the appellants.
    
      George II. Fletcher, for the respondent.
   Van Brunt, P. J.:

This action was.brought to recover upon two causes of action,, the first being for the purchase of a second-hand rolling mill known as a Birmingham Roll, which was ordered for the White Metal Company and for which the defendants agreed to pay, and the second being for the purchase of a rotary slitting machine, also-ordered by .the White Metal Company, payment for which the defendants also undertook to make. The answer of the defendants, to both causes of action was that neither of the machines conformed to the contract, and' for that reason were not accepted by the White Metal Company, and that they were returned to the plaintiff.

Upon the trial it appeared that .the Birmingham Roll, referred torn the first cause of action, consisted of two rolls geared together, a sketch of which gearing was made and annexed to the order which was given for the machiné. The rolls were to be second-hand rolls,, but extra gearing was to be applied as per the sketch annexed; and there was evidence tending to show that the mills were to be' self-contained, that is, all the parts of .the mill were to be fastened upon one base, and that they were to be of a similar form to those in use at the company’s factory at the time the order was given.

The main question in controversy arises from the fact of a dispute as to what the sketch showed, the same having been lost, and parol testimony, therefore, being given as to its contents). Upon an, examination of the evidence, it would seem that there was no' adequate proof that the rolls delivered complied with the contract. To meet this difficulty, a Mr. Granville, a witness for the plaintiff and an. officer, thereof, testified that the White Metal Company had accepted the mills, although at the very time of such acceptance it was conceded that other gearing had to be constructed in order to. make the mills do the work for which they had been supplied.. Further, to fortify the claim that the plaintiff had complied with the contract, the witness Granville Was permitted to testify that he had seen the mills in operation before they were shipped to the White Metal Company, at Mr. Charles T. Platt’s in Gold street in the city of New .York, where they had been operated for a number of years, and that the mills were only discarded by Mr. Platt for heavier rolls on account of his trade having increased. This evidence was objected to by the defendants, and the objection overruled. This, we think, was error, exceedingly prejudicial to the defendants. It is perfectly apparent that what these rolls had previously done while they were situated in Platt’s shop was no evidence as to what they would do when other gearing was applied to-them by the plaintiff, the effectiveness of which gearing seems to-have been a chief point of controversy between the plaintiff and the defendants. What the rolls did when run with Platt’s gearing-was no evidence as to what they would do or could do when run with gearing attached by the plaintiff. There being little or no-evidence that the rolls complied with the contract, or that they were-geared in a manner proper for the work which they were called, upon to do, or in compliance with the contract which had been entered into between the White Metal Company and the plaintiff,, the evidence referred to was particularly harmful, as it might well have turned the scale upon this point in the plaintiff’s favor.

As to the second cause of action, there does not seem to have been any evidence that the machine complied with the terms of the contract ; but the witness Granville is found equal to the occasion, as he-again swears to the acceptance of the machine, apparently before it was delivered. But even he seems to concede that it was not so-constructed as to successfully perform the work which under the-contract it was called upon to' do; the White Metal Company,, nevertheless, accepted the machine according to his testimony.

In view of this condition of the testimony relating to both causes-of action, the exception taken to the evidence that the White Metal Company had ceased to do business in December, 1898, presents a. most serious question and one which, we think, is fatal in this case.. This evidence was offered, undoubtedly, for the purpose of impressing upon the jury the idea that the real motive of the defendants in defending the suit was not because the machines did not fulfill the-requirements of the contract, but that they were trying to get out: of a fair and honest contract, because the White Metal Company had failed and gone out of business and, therefore, had no use fertile machines. It seems to us that evidence of this character, when-offered for such a purpose, was incompetent and improper. It wa$ foreign to the issues which were presented by the pleadings, which were whether or not the machines supplied under the contract complied therewith. It was entirely immaterial as to what became of the White Metal Company, so far as those issues were concerned. 'The plaintiff was bound to establish its case by proof and not by innuendo; and as we think that the weight of the evidence is against the plaintiff upon the question of compliance with the contract, •lipón the question of acceptance, the evidence admitted was doubly harmful.

The judgment and order should be reversed and a new trial -ordered, with costs to the appellants to abide event.

Patterson, O’Brien and Laüghlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.  