
    Thomas H. McDonald, Resp’t, v. Frank P. Nuse, App’lt.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed May 15, 1895.
    
    1. Justice's court — Proof.
    Upon default of appearance by defendant, the plaintiff is required to established his cause of action, in a justice’s court, by legal proof.
    S. Same.
    Where such proof is in writing, the writing is required, or its absence accounted for, before paroi proof is given.
    
      S. Same — Appeal.
    The defendant, on appeal from the default judgment, may avail himself of such error.
    Appeal from a j udgment in favor of plaintiff.
    
      A. J. Hibbard, for app’lt; Hull & Stewart, for resp’t.
   Hatch, J.

This action was brought to recover back the purchase price of a watch for an alleged breach of warranty in the sale thereof. The parties appeared, jointed issue, and the cause was adjourned. Upon the adjourned day, defendant did not appear. Plaintiff gave evidence of his claim, and the court rendered, .judgment for the amount thereof. Defendant now claims that there was no sufficient legal evidence to establish plaintiff’s claim. It is an ancient rule in justices’ courts that, in default of appearance, plaintiff is required to establish his cause of action by legal proof. Blair v. Bartlett, 75 N. Y. 150; Northrup v. Jackson, 13 Wend. 84.

Plaintiff resides in Denver, Colo., and the defendant in Buffalo. The parties have never met, and the whole transaction is contained in written correspondence. Consequently, the contract between the parties is to be found in the letters which passed between them. Upon the trial two letters were produced written by defendant, but nothing is contained therein which show what the contract of sale was. They admit the receipt of the first movement sent out, and acquiesce in its return as not fulfilling conditions, and sent back either the same or another movement, received from the factory, with a statement that the company does not like to admit or have it said that any of their movements fail to perform what is claimed for them to do. There is nothing in this which establishes that defendant warranted that the movement would answer any requirement. He accompanies it with no promise or agreement on his part. Plaintiff’s evidence was taken by commission, and upon the subject of warranty he says:

“About March 15,1892, I ordered a watch of the Appleton, Tracy & Co., movement of the American Waltham Watch Co. manufacture, the same to be nonmagnetic. The terms on which the watch was bought was such as govern the sale of any movement. I was governed by the warranty of the American Watch Co. The said company guarantees.their nonmagnetic movement to resist the most powerful magnetic currents.”

It is clear that all of this must have been in writing, and consequently the writing was required, or its absence accounted for before paroi proof could be given. He says, “I was governed by the warranty,” but that does not say that defendant was bound by it. What the terms were which govern the sale of such movements, and whether it was the same which he says he was governed by or whether it is a warranty by the same company, is not clear. Perhaps enough could be spelled out in that regard if the writing contained .what the testimony states it did. But that nowhere appears, and it was the legal proof which plaintiff was .required to-produced before the court was authorized to render judgment, and defendant may avail himself of such error on this appeal.

The evidence is abundant and legal to show that the watch did not perform what was expected of it, and defendant was prima facie in possession of the written order which he undertook to execute, and could have produced the same upon the trial. He did put in an answer, but failed to appear and offer proof. As he, probably, is in possession of the legal proof, and could have secured a proper disposition of the case by proof of the whole facts, we think we ought not to reverse the judgment, with costs, but set the judgment aside, and order a new trial in the municipal court, with $10 costs of this appeal to abide the event of the action. All concur.  