
    John A. McGrath, App’lt, v. William H. Mangels, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Appeal—Inconsistent position.
    A contention on appeal from a judgment, in an action for moneys had and received, that defendant did not accede to conditions stated by plaintiff in a certain letter and hence, that the law implied a promise to return the purchase money which accompanied the letter, plainly inconsistent with plaintiff’s attitude on the trial, is not available.
    3. Evidence—Parol to explain written contract.
    A letter by plaintiff was claimed by him to constitute an agreement in writing, but if such, was incomplete in omitting to state what were certain representations by defendant therein mentioned, and therefore paroi evidence concerning the nature of such representations was competent.
    Appeal from a judgment, for defendant rendered by the district court in the city of New York for the tenth judicial district. Action to recover for moneys had and received to the use of the plaintiff, under an agreement for the sale of a mare with privilege to the plaintiff to return her, if upon trial she should not prove satisfactory to him or prove to be not as represented.
    
      William H. Hamilton, for app’lt; Lewis J. Conlan, for resp’t.
   Bischoff, J.

It is conclusively apparent from the pleadings and proceedings upon the trial that plaintiff sought to recover in this action upon an alleged oral agreement between the parties to refund the purchase money if upon trial the mare should not prove satisfactory to plaintiff. The fact of any such agreement was unequivocally denied by the defendant and it is not supported by plaintiff’s letter of April 11, 1892, addressed by him to the defendant with the check for the purchase money, upon receipt of which defendant delivered the mare to the plaintiff. Whether or not such was the agreement was, therefore, a question of fact which the trial court was called upon to determine upon the conflicting testimony of the witnesses ; and careful consideration of all the evidence fails to convince us that there was such a preponderance for plaintiff that it was legal error for the court below to determine that question adversely to him.

Recovery was sought, not for breach of an alleged warranty in the sale of the mare, but upon defendant’s alleged promise to return the purchase money paid him, which was, upon the evidence, predicable at most of his agreement to return it if the mare was “not as represented.’’ What the representations were, and whether they were true or false, were likewise questions of fact determinable only from the testimony of witnesses, and with the determination of the trial court upon conflicting testimony we cannot interfere, except where there is a pal pable miscarriage of justice. Weiss v. Strauss, 39 St. Rep., 78 ; Baird v. The Mayor, etc., 96 N. Y., 567.

We have not failed to notice appellant’s contention that the sale of the mare was not completed because defendant did not accede to the conditions stated in plaintiff’s letter of April 11,1892, and hence, that the law implied a promise to return the purchase money which accompanied the letter. This contention, however, is plainly inconsistent with plaintiff’s attitude on the trial, and, therefore, not available. Fulton v. The Metropolitan Life Ins Co., 47 St. Rep., 111; Fay v. Muhlker, 48 id., 699.

So,- also, it is urged for reversal of the judgment that plaintiff’s letter of April 11, 1892, constituted an agreement in writing, and that it was error for the trial court to admit paroi evidence concerning the nature of defendant’s representations, but as the latter, if treated as an agreement, is plainly incomplete as such, in omitting to state what the representations were, the evidence objected to was properly admitted. Lamson Con. Store Service Co. v. Hartung, 45 St. Rep., 50; 46 id., 191.

The judgment should be affirmed, with costs.

Pryor, J., concurs.  