
    CUSHMAN v. DE MALLIE et al.
    (Supreme Court, Appellate Division, Fourth Department.
    December 29, 1899.)
    1. Bills and Notes—Extinguishment—Sale—Return op Property.
    Where a buyer relied on the seller’s representations as to the quality of the property, and the seller stated to the buyer that, if the property was not satisfactory,. he would hand him back his note, given therefor, a return of the property by the buyer under a claim that it was not as represented operates as an extinguishment of the note.
    2. Same—Rescission.
    Where one who has been induced to purchase property by. false and fraudulent representations as to its quality returns it to the vendor, the jury are authorized to find that the purchaser rescinded the contract of purchase.
    8. New Trial—Weight op Evidence.
    The supreme court, on appeal, will not grant a new trial on the ground-that the verdict is contrary to the weight of the evidence^ where it was rendered on conflicting testimony, and the trial judge has denied a motion therefor.
    Appeal from trial term, Monroe county.
    Action on a note by Sarah J. Cushman against John De Mallie and another. From a .judgment in favor of defendants, and from an order denying a motion for new trial, plaintiff appeals. Affirmed.
    Argued before HARDIN, P. J., and ADAMS, McLENNAN, SPRING, and SMITH, JJ.
    George M. Williams and Nelson E. Spencer, for appellant.
    Charles Roe, for respondents.
   HARDIN, P. J.

This action was commenced on the 17th day of February, 1899, to recover upon a promissory note made by the defendants, dated February 4, 1894, for $100, and in the complaint it was admitted that $26 had been paid upon the note. The note contained an indorsement as of April 11, 1897. Plaintiff’s husband, Daniel J. Cushman, was called as a witness in behalf of the plaintiff, and testified to the execution of the note, and that he saw the defendants sign it; that he drew up the note at John De Mallie’s house, and that it was delivered the day it bears date, and on the same day it was put in the possession of the plaintiff, who is the wife of the witness, and that the note was delivered to her at No. 16 State street, where she was carrying on a money brokerage business at the time. The witness testified that he was acting for her in making a sale of the property for which the note was given. From the evidence given in behalf of the defendants it appears that the note was given for a team of horses, harness, and wagon purchased of the plaintiff’s agent, her husband, for the sum of $100,—that being the face of the note,—and after the note was made a chattel mortgage was given to Mrs. Cushman as security on the property purchased, and also upon some household furniture. At the time the male defendant negotiated for the purchase of the property he only saw one horse, and took the representations of the plaintiff’s husband in respect to the other horse. In the course of the evidence given by John De Mallie he says that the husband of the plaintiff represented the horses as being “sound and true, though a little along in years”; and that “Cushman said to me: ‘John, if those horses do not suit you, I will be willing enough to hand you the note back for the horses. They are worth more, a good deal, than what I am selling them for; but I have more horses around the country than I know what to do with, that are eating their heads off.’” After the defendant had had possession of the horses, he discovered that they were “both windbroken, and were cribbers; also crippled”; and he testifies: “They were so seriously wind-broken that I couldn’t work them after I got there. I rested them four or five days, and I didn’t get them off a walk. I tried them, and one most dropped on me.” The witness testified further that in one conversation he held with the plaintiff’s husband “he told me to return the horses, and he would make a different bargain with me. He would see that I would be satisfied. * * * He told me to bring them right in, and he would patch up a different dicker, or words to that effect. He was there when I brought the property in. When I drove the horses to his barn, he was there, or came soon, for I didn’t leave until I saw him. He told me where to put the team, and I put them into the stalls, backing his wagon out of the way.” The witness, continuing his testimony, says that he returned all the property he received, and that Cushman did not see him after that until in 1897, or ask him to pay the note. After the evidence was given which we have mentioned, and the defendants had rested, the plaintiff recalled John De Mallie, and an extensive examination was had of him as a witness, and he was shown a letter by the examining counsel, the handwriting of which was admitted by the witness, and certain sentences were read therefrom, and the witness was asked in respect to them. To overcome the evidence given by the defendants, the plaintiff’s husband, Daniel J. Cushman, was called as a witness, and contradicted many of the statements made by the defendant John De Mallie, and attempted to justify the statements made to the defendant at the time the property was sold.

There was a sharp and decisive conflict between the witnesses in respect to what transpired at the time of the sale, and as to the conversations held .afterwards. It, however, does appear clearly from the evidence that the property for which the note was given was all returned to the possession of the plaintiff’s husband. In the course of the evidence bearing upon that question the witness De Mallie says that Johnson was at the barn after the horses were put in the barn when they were returned. The plaintiff did not call Johnson as a witness, arid, as he was cognizant of the return of the property, it is inferential that, had he been called, he would have corroborated the testimony of De Mallie in respect to the circumstances of the return. Because the plaintiff failed to call him inferences may be deduced that his testimony would not have been favorable to the party. Milliman v. Railway Co., 3 App. Div. 109, 39 N. Y. Supp. 274; McGuire v. Insurance Co., 7 App. Div. 590, 40 N. Y. Supp. 300, and cases there cited; Rider v. Miller, 88 N. Y. 507. Although the letter of the defendant was used in the course of the cross-examination of the defendant, it is rather remarkable that neither party put that letter in evidence, and, inasmuch as it was produced by the plaintiff, and used in the course of the cross-examination of the defendant, and certain extracts made therefrom, the absence of it as evidence in the case is suggestive that the letter contaiñed some statements and assertions that bore favorably to the position taken by the ■ defendants at the trial, and therefore it was omitted from the evidence by the plaintiff. The circumstance may have led the jury to infer that the plaintiff would have put the whole letter in evidence, if, as a whole, it bore out the contention of the plaintiff.

The plaintiff’s learned counsel calls our attention to Shultz v. Railroad Co. (Com. Pl.) 2 N. Y. Supp. 693. In that case there was a conflict in the evidence, and an affidavit, made by the plaintiff, showing the day on which the accident occurred, which was the subject of the action, was produced, and statements in that affidavit were corroborated by the evidence given by the defendant. The plaintiff’s statements as a witness at the trial were not corroborated by any witness, and in determining the question of whether the verdict should have been set aside as contrary to the weight of evidence the court said:

“This is not merely an instance of the oral testimony of one man being pitted against the unanimous oral declarations of a large number of adverse witnesses. It is, in addition to this, a case where the plaintiff, for the purpose of making out a state of facts that would prevent a dismissal of the complaint, directly denies prior written declarations of his - own, under oath, and tells a story so inconsistent with his former actions that the conclusion recorded by the jury is absurd.”

We think that case differs, very essentially from the one before us. If the property was all returned by the defendants to the possession of the plaintiff’s husband, and received by him, in accordance with the declaration made by the plaintiff’s husband that' it might be returned, then it operated as a satisfaction and extinguishment of the note. If the jury were of the opinion that the plaintiff’s husband perpetrated a fraud upon the defendants in the sale of the property by false and fraudulent misrepresentations, then they were authorized to And that the defendants rescinded the contract by returning the property to the plaintiff. While it is difficult to tell which one of the witnesses that were sworn on the trial gave the most truth and the least falsehood from reading this record, the jury have performed their functions by finding the questions of fact favorable to the defendants. Williams v. Railroad Co., 155 N. Y. 160, 49 N. E. 672.

We are not impressed, on reviewing the evidence, that the verdict is so contrary to the evidence, or to the weight of evidence, that we ought to disturb the conclusion reached by the trial judge when he heard the motion to set the verdict aside on the very grounds now urged before us. He saw the witnesses, and was able to appreciate what credit should be given to them quite as well as we are able to do from reading their testimony printed in the record. We think it to be our duty to accept the verdict oí the jury, and the decision made by the trial judge in refusing to set it aside. We therefore affirm his order denying the motion to set aside the verdict, and we also affirm the judgment.

Judgment and order affirmed, with costs. All concur.  