
    Thomas Lewis, Plaintiff and Respondent, v. Charles Blake, et al., Defendants and Appellants.
    1. The rule is uniform, that the Court will not'set-aside the verdict of a Jury, unless it is clearly against the weight of evidence. Where the- evidence is merely conflicting, a verdict found either way will not be disturbed.
    2. In this action, which was to recover for merchandise sold and delivered, the defense being that the purchase was made of a third person, under a special contract, which had not been fulfilled; there being evidence' on both sides of the question; —Held, that upon the testimony there was sufficient conflict of evidence to-authorize the Jury to find against the defense, and to bring the case within the rule.
    3. In such an action it is not error to exclude, parol evidence to explain an ambiguity in the special contract in question, where there is no averment in the pleadings to which the "proof would apply, and the defendants have not, by proof, connected the plaintiff with such contract so as to affect him by notice of its existence.'
    (Before Moncrief and Monell, J. J.)
    Heard, January 8, 1863;
    decided, January 31, 1863.
    Appeal from a judgment and from an order denying a new trial.
    The action was to recover the price of three cases of blue kerseys, alleged to have been.sold and delivered by the plaintiff to the defendants Charles Blake and .Henry 0. Landon, in November 1861.
    The defense set up was, that the kerseys mentioned in the complaint, were a part of a quantity of merchandise contracted to be delivered to the defendants by one Charles W. Alleu, under a special contract with him, made in October, 1861, whereby he agreed to deliver to the defendants in the City of New York, in the month of October, 3,000 yards of blue kerseys, “and also the entire production, of the mill in the month of November, 1861, to be not less than 14,000 yards, nor more than 18,000 yards for the month.” The contract did not indicate what mill was intended. The defendants desired, but were not allowed, to prove that it was the mill of the plaintiff at Naugatuck, Connecticut, and they insisted that the plaintiff, by the authority of Allen, and at his request and on his account, supplied the merchandise to Alleq, to be delivered under that contract to the defendants. The defendants averred that they never purchased of the plaintiff, and they denied any sale or delivering of the kerseys to them, by the plaintiff.
    The action was tried before Mr. Justice Eobeetsoh, and a Jury, on the 28th of January, 1862. The Jury rendered a verdict for the plaintiff for $1,328.35. A motion for a ' new trial was denied at Special Term, and judgment having been entered, the defendants appealed.
    E. Patterson, for defendants, appellants.
    
      G. De Forest, for plaintiff, respondent.
   By the Court—Monell, J.

The principal ground upon which the appellants move for a new trial in this case, is, that the verdict is against the weight of evidence. No exception was taken to the. charge- of the Judge, and only one exception to the exclusion or admission of evidence.

The rule for many years has been uniform, that the Court will not interfere with, and set aside the verdict of a Jury, unless.it is clearly against the weight of evidence. (De Fonclear v. Shottenkirk, 3 Johns., 170; Keeler v. Fire man’s Ins. Co., 3 Hill, 251; Eaton v. Benton, 2 Hill, 578 ; Coen v. Dupont, 1 Sandf., 260; Fleming v. Hollenback, 7 Barb., 271; Hall v. Morrison, 3 Bosw., 520.)

The evidence in this case was conflicting, and a verdict found either way would not, I think, be disturbed by the Court.

The most direct evidence that the sale was by the plaintiff to the defendants, is furnished by the testimony of the plaintiff’s witness, Levi P. Hatch, who testified that he was preseit át a conversation between the plaintiff and Landon, one of the defendants, about the 21st or 23d of October. It occurred in plaintiff’s office at Naugatuck. Landon said he came there about some kerseys. Witness thought he brought a letter of introduction from Allen. He said there was considerable conversation about price and quality: That it was agreed that plaintiff should sell defendants kerseys at 86 cents, less 9 per cent for 30 days; plaintiff to draw a# sight, inclosing invoices with the draft.

Several invoices of kerseys were sent by the plaintiff to the defendants, between October 30, and November 13th. The bills were made out against the defendants and forwarded to them, and the amounts drawn for, at sight, or one day’s sight, by drafts upon the defendants.

On the 13th, 14th and 15th of November, the invoices were forwarded, for which this action was brought.

Letters were read in evidence, written by the defendants to the plaintiff, showing or tending to show, that they were dealing directly with the plaintiff. No allusion was made in these letters to their contract with Allen, or that they were receiving the goods from the plaintiff, as the agent or otherwise of Allen. While in other letters of the defendants, also read in evidence, they make remote allusion to their agreement with Allen and refer, in terms, to the quantity of kerseys to be furnished under his contract. Both the defendants, in their testimony, substantially, although not* directly, contradict the evidence of the witness Hatch, as to the sale to them ; and they also proved invoices of kerseys forwarded by the plaintiff to the defendants, and bills made out and rendered, in the name of Allen. There was evidence given by the defendants that the plaintiff knew of the contract between them and Allen ; and, by the plaintiff, that he had no knowledge of such contract. Other evidence was given on the one side and contradicted on the other. Among other, that the plaintiff’s first invoices were forwarded at the request and on behalf of Allen, and that subsequently, and before the invoices in suit were sent, the arrangement was modified by the parties, and thereafter the defendants dealt directly with the plaintiff.

The Judge, in charging the Jury, left it for them to determine, from the evidence, whether the goods were sold and delivered by the plaintiff to the defendants, or by Allen to the defendants, the plaintiff acting as Allen’s agent in their delivery. He also instructed them, that if they found there was a contract between the plaintiff and Allen, by which the plaintiff* was bound to deliver to Allen, or to the defendants, as the agents of Allen, then they might inquire whether or not that contract was subsequently modified by the parties, so as to ■ make a new contract between the plaintiff and the defendants. In short, the whole case, without comment by the Judge, was left to the Jury to determine from the evidence.

The Jury found a general verdict for the plaintiff, and we cannot say, that it is even, against the weight of evidence. It is not clearly so. There was sufficient conflict of evidence, to bring the case within the settled rule, and the Court will not disturb the verdict.

The contract between Allen and the defendants provided for furnishing the defendants with the entire production of “ the mill ” in the month of November. The defendants’ counsel asked of a witness what “ mill” was referred to in the contract. This question was objected to and excluded by the Court, to which the defendants excepted.

If any question had been involved in the case, rendering it important to ascertain what mill was intended by Allen and the defendants, it might become necessary to inquire whether there was such an anibiguitas patens, as needed parol evidence to explain. The plaintiff was not a party to the contract, :and .was only .to be affected by notice of its existence, as bearing upon the question of sale. It was quite immaterial what Allen and the defendants intended, so long as the plaintiff was not shown, to have been connected with the contract, either as principal or otherwise. The contract was not in issue. . It was not intended to recover upon it, nor was there .any averment in the pleadings to which the proof offered would apply.. It was not shown, nor attempted to.be shown, that the plaintiff knew that his “mill” was the one contemplated. The evidence was therefore not only immaterial, but would have been improper, in determining, .the only issue the Jury was to try, and was properly excluded by the Court. . .

The judgment and order appealed from, should be affirmed.  