
    Isidor Heller and Simon Nyburg, Respondents, v. Arnold B. Heine and Jacob Rohner, Appellants.
    (Supreme Court, Appellate Term,
    December, 1903.)
    Sale—Evidence — Imprudence in making a contract does not show it to be improbable that the contract was made.
    Where the issue in an action for a breach of a contract to sell and deliver merchandise is whether or not the defendants agreed to sell the plaintiffs a certain number of pieces of linen goods of a kind and quality equal to a sample shown by the defendants, they are not entitled to prove on the trial that such goods were not in existence or in contemplation of manufacture at the time of the alleged sale, that they had failed to procure the goods from one supposed to have them in stock and that the sample shown had been acquired by them for a particular purpose only.
    The defendants’ imprudence in making the contract does not tend to show it to be improbable that they made it.
    Appeal from a judgment for the plaintiffs rendered by the City Court of the city of Hew York upon a verdict in their favor, and an order denying the defendants’ motion for a new trial.
    Action for damages resulting from the defendants’ breach of a contract for the sale and delivery of merchandise.
    Stem & Eushmore (Chas. E. Eushmore and Eldon Bis-bee, of counsel), for appellants.
    Steuer, Hoffman & Wahle (Chas. G. F. Wable, of counsel), for respondents.
   Bisohopp, J.

The action was to recover the profits lost to the plaintiffs from the defendants’ failure to deliver forty-four pieces of linen batiste, part of a lot consisting of fifty pieces which it was claimed the defendants had agreed to sell and deliver to the plaintiffs and the defendants resisted recovery, maintaining that there was a sale only of one piece with a gratuitous promise upon their part to secure certain fifty pieces ■ additional for the plaintiffs, or as many thereof as were to be had. Ho claim is here made that there was not sufficient evidence of an agreement for an absolute sale of fifty pieces as the plaintiffs contended, and the burden of this appeal is mainly that the evidence so strongly preponderated in the defendants’ favor that injustice is apparent from a verdict for the plaintiffs.

Isidor Heller, one of the plaintiffs, testified to an oral agreement with Arnold B. Heine, one of the defendants, for the unconditional sale of fifty pieces of linen batiste at eighteen cents per yard, one of which, the sample piece, was to be delivered at once, and the remainder, then at St. Gall, at an advance of not more than three cents per yard, to cover freight and customs duty.

The defendant, Arnold B. Heine’s version of this conversation was to the effect that there was an absolute sale of the piece delivered, that upon Heller’s inquiry if more of the same goods could be had, he replied that one Weyler, of St. Gall, had claimed some time previously that he had fifty pieces in stock, and that thereupon the understanding reached was that the defendants should secure, and the plaintiffs would accept and pay for, at the rate of twenty cents per yard, as many of such fifty pieces as they could.

This was substantially all the evidence bearing directly upon the disputed agreement. One Cohen, a salesman of defendants, in attempted corroboration of the defendant Heine, testified that he heard the latter say something to the effect of knowing about fifty pieces in Switzerland, and that he would endeavor to secure these for the plaintiffs, but concededly the witness took but little part in the conversation and did not hear it all.

The jury accepted the plaintiff Heller’s narration of the interview with the defendant Heine as the more accurate, and no plausible ground is afforded us for saying that they erred. True, many circumstances appeared which made it plausible to say that it would have been imprudent for the defendants to make the agreement claimed for the plaintiffs, as for instance, that the dealing in linen batiste was not in the ordinary course of their business, that they were dependent upon Weyler’s delivery to them for the fulfillment of any such agreement, and that they did not know and could not readily have known that Weyler had not already disposed of his stock.

But, even so, these circumstances, communicated or uncommunicated to the plaintiffs at the time of the interview alluded to, did not affect Heller’s testimony with any degree of intrinsic improbability to its truthfulness so that we are justified in saying that it was undeserving of credit and that the jury erred in accepting it as presenting the correct version of the agreement actually made.

The question was one merely of the accuracy of the recollection óf two apparently equally credible witnesses, and with the jury’s solution of it, we should not interfere except upon graver grounds than are here presented.

Nor do any of the exceptions taken to the exclusion of evidence and urged for reversal appear of compelling force.

The defendants offered to show that goods, such as the plaintiffs claimed the defendants had agree to sell, were neither in existence nor in contemplation of manufacture at the time; that they had in good faith endeavored to secure the goods from Weyler; and that they had acquired goods of the ldnd the plaintiffs claimed to have bought for a particular purpose only.

All this was excluded, and properly so.

The issue was whether, or not, the defendants had agreed to sell and deliver fifty pieces of linen batiste of the kind and quality of the piece first delivered, and the evidence was offered to demonstrate the improbability of such an agreement.

That they had in all delivered but six pieces was admitted, and obviously, if the agreement was as contended for by the plaintiffs, the causes which led to the defendants’ failure to fulfill it, if not prevented by the plaintiffs, or the inducement to the defendants’ purchase of goods of the kind it was claimed they had agreed to sell to the plaintiffs, could not have the effect of lessening their responsibility to the latter. - The evidence excluded, therefore, was irrelevant since it bore no logical relation to the fact in issue, the agreement. 11 Am. & Eng. Encyc. of Law (2d ed.), 501; Underhill Ev., 17.

That it would have been imprudent for the defendants to make the agreement claimed by the plaintiffs did not of itself render the agreement an improbable one. Imprudence may proceed from immaturity of experience, from reliance upon a sequence of fortunate escapes, from an unjustifiable degree of self-approval, from overweening confidence in the representations or ability of others, and from a great variety of other causes.

Improbability, therefore, is not a fair or legitimate inference or deduction from imprudence alone, and thus imprudence merely does not prove or tend to prove improbability.

The light shed by the wisdom coming from subsequent knowledge or events may show that a particular act was or would have been an imprudent one, but any argument that the commission of an act is improbable merely because it would have been imprudent to commit it proceeds from no reasonable inference or logical deduction and involves an incursion into the realms of pure speculation or conjecture. It could be argued with equal force that the act was a most probable one, because it operated advantageously to the other contracting party, and so that proof of such advantages was relevant to the issue as to whether or not the agreement claimed was in fact entered into.

The judgment and order appealed from should be affirmed with costs.

Ebeedmaw, P. J., and Blattchabd, J., concur.

Judgment and order affirmed, with costs.  