
    BROCK v. ASPENLEITER.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Practice—Nonsuit.
    In an action for the price of butter sold, the only evidence in the case was that of plaintiff, who testified that defendant agreed to buy butter of plaintiff if he would buy clothes of defendant, which was the only transaction between them; that all the butter furnished “was to be credited on account;” and that he had no memorandum of the clothes bought from defendant, and had never rendered any account. HeldI, that a nonsuit would not be disturbed, there being no evidence that defendant had not complied with the contract.
    Appeal from Monroe county court.
    Action by Albert A. Brock against Joseph A. Aspenleiter. From a judgment of the county court affirming a judgment of the municipal court of the city of Rochester in favor of defendant, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    G. W. Allen, for appellant.
    James L. Hotchkiss, for respondent.
   LEWIS, J.

This action was brought in the municipal court of ' Rochester to recover $70.78 for butter sold and delivered by the plaintiff to defendant. The plaintiff was nonsuited, and an appeal was taken to the county court of Monroe county from the judgment of nonsuit on questions of law only. The judgment was affirmed by that court, and an appeal was taken to this court. All the evidence came from the plaintiff. He was a dealer in butter. The defendant was in the clothing business. The plaintiff testified that he first began to deal with the defendant in 1889. “I asked him [meaning the defendant] if he would take butter of me if I would take clothes. It was to the effect that he wanted butter, and,I told him if he could use the butter it would help me; it would be as good as cash. He said, ‘All right.’ The butter and clothes were all part of our transaction.” “I have no memorandum of the clothes I bought of him. I have never rendered to defendant a statement of my account, and have never demanded payment of that. My understanding of the talk I and this defendant had was that all butter I furnished was to be credited on account.” The trial judge drew the inference from this evidence that the butter was sold to be paid for in clothing, and, there being an absence of any evidence that the defendant had failed to keep his part of the contract, he concluded that the plaintiff had failed to make a case, and hence granted a nonsuit, and we find no reason for disturbing the judgment. The judgment appealed from should be affirmed, with costs. All concur.  