
    James Scott and Edgar Kleinhans, Respondents, v. George F. Lowe, Appellant.
    First Department,
    January 21, 1910.
    Sale — complaint — failure to state cause of action — evidence — payment — former shortage in goods sold.
    A complaint which alleges that pursuant to an agreement with the plaintiff the defendant shipped to himself two carloads of potatoes purporting to amount to a certain number of bushels at a certain price per bushel, according to an invoice, the'goods to become the property of the plaintiff on notification of their arrival, and that there was a certain shortage in -weight, does hot State a cause of action, as "the contract of sale is not set forth in words or substance, and it is not alleged that the plaintiff paid for th.e goods.
    The allegation that the potatoes were to become the property of the plaintiff upon arrival is a mere conclusion of law, and is entirely consistent with a gift.
    Under" such complaint evidence that the plaintiff paid for the first carload is " inadmissible.
    So, too, it is error to admit evidence that the defendant paid shortage claims on former shipments.
    Appeal by the defendant, George F. Lowe, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th day of April, 1909, upon the yerdiet of a jury, and also from a,n order, entered in said clerk’s office on the 28th day of April, 1909, denying the defendant’s motion for a new trial made, upon the minutes. .
    
      Frederick M. Harris, for the appellant.
    
      Alfred Dwight Senftner, for the respondents.
   Scott, J.:

The record on this appeal suggests that plaintiffs probably have a cause of action against the defendant, but none is set forth in the complaint and none established by the evidence.

The complaint alleges that the defendant under and pursuant to an oral agreement with the plaintiffs, on or about the 21st day of October, 1907, shipped to himself, notify Scott & Kleinlians, one car load of potatoes, said car load purporting to amount to 695-jj- bushels, at $.56 per bushel, according to defendant’s invoice mailed • to the plaintiffs, said goods to become the property of the plaintiffs upon arrival in Hew York City, and notification of arrival of said goods received by the plaintiffs.” It is then alleged that the goods arrived but were found to be deficient in weight to the extent of 108 bushels, the value of which stated at sixty dollars and forty-eight cents, the plaintiffs seek to recover.

There are similar allegations as to a second shipment. It is apparent that the plaintiffs’ right to recover is primarily dependent upon the contract pursuant- to which the potatoes were shipped. It is alleged that there was an agreement, but, it is not set forth either in exact words or in substance. The allegation that under the agreement the potatoes were to become the property of the plaintiffs upon arrival in Hew York city does not help, because that allegation, if anything more than a conclusion of law, is entirely consistent with the idea'that the potatoes were sent as-a gift, in which case plaintiffs would scarcely have an action for damages because the gift was not so large as they had- expected. It is not alleged as, however, the fact probably was, that plaintiffs paid for the potatoes when received at fifty-six cents per bushel, according to the number of bushels shown on the invoice, and upon reweigliing found that they had paid for a greater quantity than they had received. Hot only was this state of facts not alleged, but as. to only one shipment was there any evidence that plaintiffs had paid for the potatoes. Even this evidence was inadmissible under the pleadings and was received under objection. - Furthermore it was erroneous, to admit evidence that defendant had paid shortage claims on former shipments. - . . , -

' The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin, Clarke and Miller, J j., concurred.

Judgment and order reversed, new trial ordered,, costs to appbllant' to abide event. *  