
    Thomas Koser, App’lt, v. August Sommer, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Contract—Verdict in justice’s court.
    In an action in justice’s couit to recover for potatoes sold and delivered tlie defendant claimed that there was a failure to perform an entire contract to sell and deliver a larger quantity. The evidence, which was confined to the testimony of the parties, was conflicting as to whether the contract was for the sale and delivery of not less than 300 bushels, or of the quantity which plaintiff had on hand, supposed to he that amount, but which proved only to he the amount actually delivered. Held, that the question was peculiarly one for the jury, and that their verdict should not have been disturbed on appeal.
    Appeal by the plaintiff from a judgment of the county court of Monroe county, reversing the judgment of a justice’s court, entered on the verdict of a jury.
    
      T. S. Dean, for appl’t; N. Bull, for resp’t.
   Dwight, P. J.

The action was to recover the balance of the agreed price of 142 bushels of potatoes sold and delivered by the plaintiff to the defendant. The answer was a general denial merely.' The defense sought to be established was failure to perform an entire contract to sell and deliver 200 bushels or more. It is plain that this defense was not, strictly, available to the defendant under his answer, but assuming that the variance was one which might be disregarded under the liberal rule prescribed for justice’s courts, Code of Civ. Pro., § 2943, yet there arose, upon the evidence, a distinct issue of fact whether the contract was for the sale and delivery of not less than 200 bushels, or of the quantity of potatoes which the plaintiff had on hand, supposed to be about 200 bushels, but which, upon sorting, proved to be only 142 bushels, the quantity actually delivered. The evidence was confined to the testimony of the plaintiff on the one hand and the defendant on the other. The question was peculiarly one for the jury, and it must be presumed, in support of their verdict, that they found on that question in accordance with the testimony of the plaintiff, and we are quite disposed to believe that that finding was in accordance with the truth of the case. Certainly it was supported by evidence which the jury had a right to believe, and we think it should not have been disturbed on appeal.

The judgment of the county court should be reversed, and that of the justice affirmed.

Judgment .of the county court of Monroe county appealed from reversed, and that of the justice affirmed, with costs to the plaintiff in this court and in the county court.

Macomber and Lewis, JJ., concur.  