
    The E. B. Constantine Manufacturing Company, Appellant, v. William H. Reynolds, Respondent.
    Second Department,
    January 10, 1908.
    Sale — warranty as to performance of machine — failure due to buyer’s neglect — erroneous nonsuit — interpretation of evidence on appeal.
    Correspondence and negotiations relating to an accepted offer to manufacture and sell mechanical fish examined, and held, to be sufficient to establish an enforcible contract supported by a sufficient consideration.
    When in an action to recover the agreed price of mechanical fish which were guaranteed to run an hour or more, the seller to repair free of charge any defects caused by faulty workmanship or material,, the plaintiff has testified that prior to delivery the fish were tested and found to fulfill the guaranty, and that the reason they failed to "operate when used by the defendant was because that, though requiring delicate handling, the defendant’s servants threw the fish into the water without winding them up and without closing the caps provided to. keep out water, he has given prima facie proof of compliance with the warranty, and a nonsuit is error.
    On appeal from a dismissal of the complaint at the close of the plaintiff’s case thp latter is entitled to the most favorable interpretation of the evidence.
    Appeal by the plaintiff, The E. B. Constantine Manufacturing Company, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of June, 1906, upon the dismissal of the complaint by direction of . the court at the close of the plaintiff’s case upon a trial before the court and a jury.
    
      Jesse Fuller, Jr., for the appellant.
    
      Albert E. Richardson, for the respondent.
   Woodward, J.:

At the close of the plaintiff’s case the learned court dismissed the complaint on the ground that there was nothing to submit to the jury. I think this was error and that the facts presented were sufficient, if not refuted, to justify a recovery.

The plaintiff sued to recover $1,000, the price of 100 mechanical fish which he claims to have manufactured under a written contract for the defendant’s use in Dreamland, Coney Island. The contract, which was introduced in evidence by the plaintiff, was as follows:

“E. B..Constantine Meg. Co.
(Incorporated)
“1180 Bedford Ave.
“ Brooklyn, Y. Y., Apr. 8, 1904.
“ Dreamland Fish Pond,
“0/o¥m. H. Reynolds : —
“We, the undersigned, agree to furnish oife hundred (100) mechanical fish as per sample and instructions, said fish to be made of the best quality copper of heavy weight, with spring motor, áte., all to be of best material, workmanship and finish. We further guarantee each fish to run for one hour or more, and. we agree to make any repairs on same that may be caused by faulty workmanship or material — free. Oth ér repairs will be made at a moderate price. We will also furnish with the 100 fish, extra screw-caps, keys and screw-guards.
“ The above to be delivered by May 10/04.
“We make the price of each fish ten dollars (10.00) 100 fish $1000, one thousand dollars payable on delivery.
“E. B. COY START LN E MFG. CO.
“ O. Gr. Mortmer, Jr., Sedy.
Accepted,
“ Wm. H. Reynolds.”

Since the defendant concedes the signature to be his, and since also his name was signed to the telegram in evidence, asking the plaintiff to remove the fish, and, furthermore, because it was shown that the plaintiff refused to begin the manufacture until the defendant’s signature appeared below the contract, and because of various meetings held by the plaintiff with the defendant in reference to the manufacture, in one of which, the plaintiff, testifies, the defendant told him to make a sample, adding that if such sample filled the bill he would be glad to have the plaintiff furnish a hundred thereof, I think that ¿none of the essential elements of a contract are absent.

The evidence introduced by the plaintiff shows the assent of the parties, as well as mutuality and obligation. He established also a sufficient and legal motive and proper consideration. (Justice v. Lang, 42 N. Y. 493.) Because of the dismissal of the suit the plaintiff’s evidence is entitled to the most favorable interpretation. And while the court held that the express warranty was not complied with, we think the evidence admits of a different construction.

The plaintiff testified that the fish, when tested by him prior to delivery to the defendant, were in good working order; that they did not leak, and that they ran.for over one hour. He admits that, after delivery they sank and leaked, as the defendant alleges, but denies that this was due to defects in the mechanism. It appears that the plaintiff warned those who had charge of the fish for the defendant that the fish required careful handling, notwithstanding this admonition, the defendant’s servants, who were little boys, threw the fish into the tank by armfuls without even winding them up, and also without the caps that kept out the water; and these precautions the plaintiff claims were absolutely necessary to keep the fish afloat. Though, from the defendant’s attitude, it. would seem that the acceptance of the fish was conditioned on the result of experiments in the tank at Dreamland, yet the testimony of the plaintiff that the defendant accepted after a prior experiment before him is entitled to consideration.

If the defendant was as careless in the handling of the fish as the plaintiff testifies, he should not be allowed to shift the responsibility of failure upon the plaintiff. When told that this was a delicate mechanism requiring peculiar care, the defendant should have seen that such care was exercised. And if because of his neglect the fish sank to the bottom and refused to do their work, he cannot claim, a breach of warranty. Because of the proof that the fish when properly wound had been able to run for one hour and more, and because the plaintiff'expressly disavowed his responsibility for the result of the defendant’s neglect, we think that the evidence establishes a prima facie case.

The judgment dismissing, the complaint should be reversed and a new trial granted, costs to abide the event.

Jenks, G-aynor, Rich and Miller, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered, costs to abide the event.  