
    Thomas Murphy et al. plaintiffs and appellants, vs. Herman Boker et al. defendants and respondents.
    1. The rejection of evidence which although in its nature competent to establish the fact proposed to be proved, is wholly irrelevant to the sole issue submitted to the jury, is not a ground of exception.
    2. Even though the court would, if sitting in the place of the jury, have come to a different conclusion from that reached by them, that will not warrant an interference with the.verdict, where there is no such preponderance of evidence as to induce the belief that the verdict originated in either passion, prejudice, or a mistake.
    3. The court can never exclude relevant testimony because it does not establish at once the issue to which it relates. The different links may i e introduced in succession. . • •
    4. The party against whom such testimony is introduced is amply protected against any prejudice, by his right to call on the court to direct the jury to disregard it, for all purposes, where it is not prima facie evidence of any material issue.
    5. If his counsel neglects to do so, the court has a right to presume he does not think the evidence of sufficient importance to require such a caution. And it is no sufficient ground of complaint that the court, in such a case, has not volunteered to warn the jury against being misled ; nor a reason for granting a new trial on the ground of an oversight.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November 11, 1864;
    decided December 31, 1864.
    Some time prior to the 16th day of September, 1862, the plaintiffs and defendants entered into a negotiation for the sale by the defendants to the plaintiffs of a lot of buffalo robes, which was consummated on the 16th of September, and a memorandum was signed by the defendants as follows, viz :
    “ Hew York, Sept. 16th, 1862.
    We hereby state that we have sold this day, to Messrs. Murphy, Griswold & Co. 19 Murray street, about two hundred bales of buffalo robes, plain seas. Ho. 1, more or less, now stored at 29 Dey street, at price of $5.37J per robe, net cash on delivery. Delivery of fifty bales to be made on next .and each succeeding Monday. Herman Boker & Co.”
    The words “ plain seas Ho. 1,” was interlined in the memorandum. On the 22d of September, the defendants delivered fifty bales of the robes from Ho. 29 Dey street, in pursuance of such memorandum, which the plaintiffs returned to the defendants and refused to receive,. The defendants, on the same day, requested the plaintiffs to fulfill their contract, which they did not do. The plaintiffs refused to receive the robes, and never did accept any 'of them. The plaintiffs then commenced this action, averring that the defendants had refused to deliver the goods sold to them, and claimed damages in the sum of $3000 for nondelivery of the goods sold pursuant to the written memorandum. The defendants, among other defenses, allege that they tendered the robes agreed to be sold, and that the plaintiffs refused to accept them, &c. There was no dispute about the-fact that the robes mentioned in the written memorandum as being stored at Ho. 29 Dey street, were tendered to the plaintiffs by the defendants, and that they declined to receive them upon the ground that they were not “ plain seas. Ho. 1” robes. The only question submitted to the jury was, whether or not the robes tendered to the plaintiffs were what are known in the trade as “ plain seas. No. 1 ” robes. The jury found this in favor of the defendants, rendering a verdict for them for the costs. And from the judgment entered on such verdict, and from an order made at a special term, denying a motion for a a new trial, the plaintiffs appealed.
    
      A. R. Dyett, for the plaintiffs, appellants.
    
      J. R. Warner, for the defendants, respondents.
   By the Court, Robertson, Ch. J.

The learned judge, before whom the cause was tried, submitted a single issue of fact to the jury, to wit, whether the articles tendered by the defendants, in satisfaction of the contract in controversy, were such as were generally known to the trade as plain seasonable No. 1 (Buffalo) robes, and on all other points ruled as requested by the plaintiffs. He called their attention to the fact, that there was a certain assortment of robes known in the trade as P. Chouteau’s No. 1 plain seasonable,” and that was a standard description. ® ® But the words used in the contract were “ plain seasonable No. 1,” the word “ Ghouteau” not being introduced. No exception was taken to the charge. A motion for a new trial on a case was denied. An appeal is .taken from the order denying it, as well as the judgment. The main ground for moving to set aside such verdict is, that it was so clearly against evidence as to shew partiality, prejudice or ■ misapprehension on the part of the jury. And the admission of evidence to prove a mistake in the contract, which it failed to establish, is supposed to have contributed largely to such result.

The testimony of six witnesses was directed to the issue thus submitted to the jury. Two beside the plaintiff, Murphy and their porter, (Ball,) were introduced on the part of the plaintiffs, to wit, Mr. Bourton, a dealer in buffalo robes, and his porter, (McKenna,) and two on the part of the defendants, one of them, to wit, Mr. Kerbeck, a dealer in furs, and his salesman, (Monroe.) No meaning seems to have been attributed to the word “plain” beyond its ordinary sense. “ Seasonable” was held to be applicable to skins obtained in the winter season, full grown, full furred, of dark color and good pelt. The principal difficulty was to settle the meaning of the term “ No. 1,” either with or without those words ; robes sent to the market, as Chouteau’s, in the original packages, and sold as No. 1 plain seasonable. Chouteau’s are understood to be of a certain kind, and are not generally examined by buyers. (After examining the testimony, the court proceeded.)

The onus lay on the plaintiff of establishing what was meant by plain seasonable No. Vs; and if it meant only according to Chouteau’s standard, that it did so even when no such name was expressed. There was evidence enough in the case to sustain a finding that it- did not, and that it was intended merely to describe an assortment of a high character within ten or twenty per cent of that standard, and that the limits were very vague. It is evident from the whole testimony of the plaintiff and his porter, that they were testifying as to the inferiority of the goods tendered, measured by the Chouteau standard. Neither of them describe the nature of the imperfection or inferiority stated by them, although Ball described the different grades of robes and the titles by which they are known. There was room therefore for the jury to infer that there was no such absolute standard as plain seasonable No. l’s without Chouteau’s name ; or that it had a wide scope as to the quality of the goods; or that the plaintiffs did not make out a specific difference between the goods tendered and that standard. That verdict has been sustained by a justice of this court at special term in the exercise of his discretion. And even if we would have come to a different conclusion sitting in the place of the jury, that would not warrant •an interference with the verdict. (Stoddard v. Long Island R. R. Co., 5 Sandf. 180. Dart v. Farmers’ Bank at Bridgport, 27 Barb. 337.) There is. certainly no such preponderance of evidence as to induce us to think that the verdict of the jury originated in either passion, prejudice or a mistake. (Cohen v. Dupont, 1 Sandf. 260.) They were directed to confine their attention to a single issue in the clearest terms,. and were expressly warned against taking into consideration the fact that the goods tendered were those in the store mentioned in the memorandum.

It is said, however, that the jury were allowed to hear and were not directed to disregard certain testimony admitted to establish an issue made by the defendants of a mistake in the contract, with a view to its reformation. It is very evident that the court never exclude relevant testimony because it does not establish at once the issue to which it relates. The different links must be‘introduced in succession. The party against whom it is-introduced is' amply protected against any prejudice by his right to call on the court to direct the jury to disregard it for all purposes, where it is not prima facie evidence of any material issue. Where his counsel neglects to do so, the court has the right to presume he does not think the evidence of sufficient importance to, require such a caution. It is no ground of complaint that the court in such a case has not volunteered to, warn the jury against being misled, or a reason "to grant a new.trial on the ground of an oversight.

Every exception in the case bears on matters relating to the sole issue submitted to the jury. In reference to evidence, therefore, rejected as not bearing on such issue although competent for other purposes, no exception would lie. (Purchase v. Mattison, 6 Duer, 587.) An exception was taken to a witness being required to answer what the quality of certain robes bought by him from the same lot as those bought by the plaintiff was, upon the ground that the defendants admitted in their answer that the latter did not correspond with the contract ; whereas the answer in its second defense alleged a tender to and refusal by the plaintiffs of the baffalo robes agreed, to be sold, which took away the ground of such exception. The plaintiff Murphy was prevented from testifying whether any thing was said in his negotiation with the defendant Frinke about Icnowing what such robes were. That was claimed to be admissible because such defendant gave as a reason on his cross-examination by the plaintiff’s counsel for not having .stated that such robes were plain seasonable No. 1. that he did hot know -its meaning, which was quite different from his stating that as a reason at the time. A dealer in robes (Her-beck) was asked what he regarded as plain seasonable No. 1 robes. Upon which he certainly had a right to express his opinion as an expert. The defendant Erinke was asked whether in the negotiation for the sale he stated what the quality of such goods was ; which was admissible to contradict a pre-' vious statement of the plaintiff Murphy that Erinke gave him a statement that they ivere plain seasonable No. 1. These constituted the only exceptions to the testimony except one to the exclusion of a question put to the plaintiff Murphy to detail the conversation by which he and the defendant Erinke got at the price of the goods, which was entirely immaterial.

The verdict of the jury being warranted by the testimony, and no exception to evidence being well taken, it will not be necessary to consider the other views taken by the counsel for the defendant. The grave questions: whether the contract was not void under the statute of frauds ; whether a particular parcel of goods in a particular store only was sold ; whether, the use of the words plain seasonable No. 1, made a representation or a warranty, and if the former, whether the defendants were liable without proof of a fraud ; or if the latter, whether the refusal by the plaintiffs to receive the goods did not rescind the contract, are not necessary to be passed upon.

The order denying a new trial, and the judgment, must be affirmed, with costs.  