
    Owen O’Beirne, Plaintiff-Appellant, v. Harry Greenberg, Defendant-Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Evidence — failure to establish cause of action — lack of proof sustaining allegations of complaint — action for goods sold and delivered.
    Where, in an action for goods sold and delivered, the only question litigated was as to the terms of sale, and by a verdict in plaintiff’s favor based upon sufficient evidence to sustain the allegations of the complaint, it must be assumed that the jury determined that defendant had agreed to give a mortgage on the goods without qualification as to the title, and that the sending of a bill to him inscribed “title to remain in us until goods are paid for.” was merely a negligible incident and oversight, and the verdict was not set aside as contrary to the evidence, an order setting aside the verdict, reciting that there was a lack of proof sustaining the allegations of the complaint as to the sale of goods, wares, and merchandise therein mentioned, and that the plaintiff has failed to establish by his proof the cause of action alleged in his complaint, is erroneous and must be reversed.
    Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict of a jury in favor of plaintiff, and dismissing the complaint upon the reservation of a motion to that effect made during the trial.
    
      Wilber, Norman & Kahn (Louis L. Kahn, of counsel) , for appellant.
    Joseph A. Whitehorn (Henry Kuntz and Abraham P. Wilkes, of counsel), for respondent.
   Bijur, J.

This action was brought for the purchase price of goods sold and delivered by plaintiff to defendant. The only question litigated was as to the' terms of sale.

Plaintiff claims that defendant was to pay a certain sum in cash down, which it was admitted he did, to give a chattel mortgage to plaintiff on the goods, and to give notes for payment of the balance over a period of some fourteen months. The promise as to the giving of the mortgage was denied by defendant. Plaintiff’s principal witness, the manager, testified repeatedly that the arrangement was that the title was to remain in plaintiff until the goods were paid for.- On the other hand, he qualified this statement by the explanation I can’t tell you whether those goods belong to us or not according to law. Mr. Greenberg has the goods.” In other words, he indicated very plainly that so far as his opinion was concerned he thought that the giving of the chattel mortgage by the defendant left the title in the plaintiff. He admitted, however, that a bill had been sent to the defendant containing the inscription “ Title remains in us until goods are paid for.” Plaintiff himself, in rebuttal, claimed that this “ was a temporary bill sent out before the goods were delivered.”

The learned judge b.elow left clearly to the jury the question whether there had been an absolute or conditional jale. He declined to charge that if the jury should find that a chattel mortgage was to be given, then it was a sale and that title passed to the defendant, qualifying that charge hy the statement that that was only true 1 ‘ if nothing was said about title to the property. ’ ’ As the jury found for the plaintiff, it must be assumed that they determined that defendant had agreed to give a chattel mortgage without qualification as to the title, and that the sending of the bill with the inscription above referred to was a mere negligible incident and oversight. The verdict has not been set aside as contrary to the evidence. The order itself is rather vague. It says that “ there was a lack of proof sustaining the allegation in the complaint as to the sale of goods, wares and merchandise therein mentioned * * * and that the plaintiff has failed to establish by his proof the cause of action alleged in his complaint.” As the plaintiff gave ample evidence to sustain the allegations in the complaint and the jury so found over the denial of the defendant, I find that the order was erroneously made. Had defendant executed the mortgage which he had agreed to give, and given the notes, he would have been entitled to the terms of credit accordingly; or had the agreement been that he should have credit for fourteen months on giving the notes alone, it may well be that the action could not be maintained until the installments fell due; but defendant violated, in addition to the provision as to the giving of the notes, his agreement to give a chattel mortgage, and on that default plaintiff was entitled to recover the value of the goods sold and delivered of which the plaintiff gave sufficient prima facie evidence by showing the agreed price. See 35 Cyc. 528-530, and in particular, Wineman v. Walters, 53 Mich. 470.

Seabury and Page, JJ., concur.

Order reversed, with costs, and verdict reinstated.  