
    Robert P. Staats et al., Respondents, v. Frederick M. Hausling, Appellant.
    (City Court of New York, General Term,
    February, 1898.)
    1. Goods sold — Construction of contract — Evidence.
    Where the only issue, in an action brought to recover the purchase price of a shed upon a pier, is whether the vendee, in reselling to the vendors, at a price fixed and as junk, certain trusses 'of. the shed, also included the timbers which were attached to- the iron trusses and which the vendors took, it is erroneous for the court to preclude the vendor from showing the value of the iron as junk, as such proof would tend to show what materials were' intended by the parties to be sold for the price fixed.
    2. Practice — ¡Bight to close.
    Where the allegations of the complaint are admitted by the answer and the defense rests upon a counterclaim, the defendant is entitled to make the closing argument to the jury, and a denial of the privilege affects a substantial right.
    Appeal from a judgment entered upon' a verdict of a. jury in favor of the plaintiffs and from an order denying a motion made . by the defendant for a new trial.
    Francis A. Dugro, for appellant.
    Alfred E. Smith, Jr., for respondents.
   O’Dwyer, J.

This- action is on contract to recover the sum of $360, the balance of the purchase price of a shed on pier'43, ¡North fiver.

Plaintiffs entered into an agreement with defendant by which they sold to bim the shed on pier 43, North river, for $460, he to take the same down and remove it. There is no dispute over this agreement.

Subsequently, another agreement was entered into between the plaintiffs and the defendant, upon the subject-matter, over which the contentions of the parties herein were founded. The defendant asserted and maintained that the plaintiffs told him, after the agreement to purchase had been made, that they might be able to use the iron trusses, used on the shed, and asked him how much he would sell them for; that he told them he would sell them to the plaintiffs at the price of .old iron, and that he did sell the same to them for the sum of $100. Defendant also insisted that the yellow pine timber attached to said iron was not covered by said sale. ' Plaintiffs claimed that the defendant not only sold the iron trusses, but the yellow pine timber attached thereto, for said sum of $100.

Plaintiffs took both iron and wood against the protest of the defendant. The defendant then charged plaintiffs $290.70 for the yellow pine timbers, being at the rate of $17 per thousand, in addition to the $100 for the iron trusses, and set up as a counterclaim to the plaintiffs’ -claim for the price of the shed, the value of the yellow pine timbers.

On the trial the defendant asserted that plaintiffs were entitled to recover of him the price of the shed, $460, less the value of the yellow pine timbers, and the agreed price of the iron trusses, which would leave a balance in favor of the plaintiff pf $69.30.

The defendant having testified that, in making the agreement with the plaintiffs to resell to them the trusses, he told one of them, with' whom he contracted, “ that it is worth just old iron ” and that they could háve the trusses “ at just the same price of junk iron,” it was erroneous to refuse to allow him to show what that value was, after he had been shown qualified to give such evidence.

The only issue between the parties in this case was whether the defendant had s,old to the plaintiffs the iron and the yellow pine timbers for $100, and if he had not sold the yellow pine timbers, the amount defendant was entitled to recover from plaintiffs at their value.

If the iron alone were intended, then the defendant was entitled to recover the reasonable value of the yellow pine timbers, as it was admitted by the plaintiffs that they took the timbers, with the iron:

The defendant should have been allowed to testify to the value of the iron, since the value as junk iron, was expressed by defend- , ant in the contract, was indicative of his intention and would have tended to show the intention of the plaintiffs as to what was. to be included in the purchase.

The jury might have inferred that the iron was not worth $100,' without the timbers, and, from that, that the wood was intended to be included.

The’evidence related, therefore, to a fact in issue, and certainly to a fact relative to the issue, and was competent evidence of such fact; and to exclude it was error. The evidence of the witness Alfred Richards, as to the value of .the yellow pine timbers was incompetent for the reason that he was not qualified to give evidence of their value.

The only facts by which it was attempted to show that the 'witness Richards had any knowledge of the market value of the timbers in question, was his statement that he was familiar in a way with the value and that since he worked for Mr. Staats he had sold timber.

' This witness, without further qualification shown, was allowed, under the objection and exception of the defendant, to* testify that, in his opinion, the yellow pine timber was not worth more than about $4 a thousand feet. This was less than the plaintiffs admitted it was worth:

JohnH. Stáats, one of the plaintiffs, admitted and testified that, in his opinion, the timber was worth $5 per thousand. At this rate defendant would have received $85 for the timber.

Staats said too that he was very familiar with the market price and had bought and sold timber. The jury gave plaintiffs a verdict for two hundred and ninety dollars, exclusive of inr terest, ' which was seventy dollars less than the plaintiffs’ claim, and as the claim in the complaint was admitted by the answer and upon the trial, and as the answer contained no denial of it, or set off against it, except the value of the jimber set up in the counterclaim, the conclusion that the jury allowed the $70 for the 17,100 feet of timber or 17,000 feet, as plaintiffs admitted it to be, is unavoidable.

The court too instructed the jury thát it was for them to decide whether the witness was a competent judge of the value.

Defendant should have been allowed to make the closing address to the jury.

Defendant’s attorney made a motion at the close of the case to make the closing argument to the jury, which was denied. The whole of the plaintiffs’ claim was admitted by the answer and' upon the trial.

The only legal effect of the answer is that it admits that the-agreement and transaction between the parties was that defendant purchased the shed in question from the plaintiffs for the sum of $460, and that he was indebted to plaintiffs for that amount, less any set-off; the answer did not-take any issue whatever upon those facts.

The only fact denied in the answer is the right of the plaintiffs to take the timbers which thé iron trussed up, and it set this up by way of counterclaim. When plaintiffs came into court they had nothing to prove.

If the plaintiffs had not offered any proof and the defendant had not offered any proof, the court would have been compelled, upon motion of the plaintiffs, to give them judgment for $460, less $100, or $360 demanded in the complaint. -

The burden was upon the defendant, from the first instance, to prove that the plaintiffs, had agreed to allow him more than-plaintiffs admitted was due for the trusses. So the defendant necessarily had the affirmative, legally, from the commencement of the trial and this did not in any way shift; for plaintiffs’ proof, all the way through the case, was simply to negative the defendant’s claim, that they had taken the timber without right and he was damaged thereby.

The proofs offered by the respective parties during the trial showed this fact clearly, and when the defendant’s counsel asked to have the closing argument to the jury, his request should have been granted, and the exception taken to the court’s refusal shows error which affects a substantial right. Mead v. Shea, 92 N. Y. 122. The motion was made at the proper time. Mead v. Shea, supra.

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

Fitzsimons, Oh. J., and McCarthy, J., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  