
    McGrath v. Mangels.
    (New York Common Pleas
    General Term,
    December, 1892.)
    The determination of a disputed question of fact tried before a justice without a jury will not be interfered with on appeal unless there is a palpable miscarriage of justice.
    A contention made by a party on an appeal which is inconsistent with his attitude on the trial is not available.
    Appeal from a judgment for defendant rendered by a District Court in the city of New York.
    Action to recover for moneys had and received to the use of the. plaintiff, under an agreement for the sale of a mare with privilege to the plaintiff to return her, if upon trial she should not prove satisfactory to him or prove to be not as represented.
    
      William H. Hamilton, for plaintiff (appellant).
    
      Lewis J. Gonlcm, for defendant (respondent).
   Bisohoee, J.

It is conclusively apparent from the pleadings and proceedings upon the trial that plaintiff sought to recover in this action upon an alleged oral agreement between the parties to refund the purchase money, if upon trial, the mare should not prove satisfactory to plaintiff. The fact of any such agreement was unequivocally denied by the defendant and it is not supported by plaintiff’s letter of April 11, 1892, addressed by him to the defendant with the check for the purchase money, upon receipt of which defendant delivered the mare to the plaintiff. Whether, or not, such was the agreement was, therefore, a question of fact which the trial court was called upon to determine upon the conflicting testimony of the witnesses, and careful consideration of all the evidence fails to convince us that there was such a preponderance for plaintiff that it was legal error for the court below to determine that question adversely- to him.

Recovery was sought, not for breach of an alleged warranty in the sale of the mare, but upon defendant’s alleged promise to return the purchase money paid him which was, Upon the evidence, predicable at most of his agreement to return it if the mare was “not as represented.” What the representations were, and whether they were true or false, were likewise questions of fact determinable only from the testimony of witnesses, and with the determination of the trial court upon conflicting testimony we cannot interfere, except where there is a palpable miscarriage of justice. Weiss v. Strauss, 39 N. Y. St. Repr. 78; Baird v. Mayor, etc., 96 N.Y. 567.

We have not failed to notice appellant’s contention that the sale of the mare was not completed because defendant did not accede to the conditions stated in plaintiff’s letter of April 11, 1892, and hence, that the law implied a promise to return the purchase money which accompanied the letter. This contention, however, is plainly inconsistent with plaintiff’s attitude on the trial, and,- therefore, not now available. Fultor. v. Metropolitan, Life Ins. Co., 19 N. Y. Supp. 660; Fay v Muhlker, 1 Misc. Rep. 321.

So, also, it is urged for reversal of the judgment that plaintiff’s letter of April 11, 1892, constituted an agreement in writing and that it was error for the trial court to admit parol evidence concerning the nature of defendant’s representations, but as the latter, if treated as an agreement, is plainly incomplete as such, in omitting to state what the representations were, the evidence objected to was properly admitted. Lam-son Con. Store Service Co. v. Hartung, 18 N. Y. Supp. 143 ; 19 id. 234.

The judgment should be affirmed, with costs,

Pbyob, J., concurs.

Judgment affirmed.  