
    ABNER H. McCORMICK and Another, Plaintiffs and Respondents, v. JOHN B. SARSON, Dependant and Appellant.
    Where, upon a sale of lumber of different qualities, a partial failure of consideration— i. e., a delivery of inferior qualities—is available only by way of recoupment of damages, and must be set up in the answer, the defence not being taken by answer, it is not error to exclude evidence of the inferior quality of the lumber. Where a purchaser accepts delivery, he can only claim a deduction, and cannot defeat a recovery.
    Before Monell, MoCunn, and Freedman, JJ.
    
      [Decided May 3, 1869.]
    This case was tried before Mr. Justice McCunn and a jury.
    After the plaintiffs had closed their case, the defendant offered to show that all the lumber for which the action was brought as prime, and a large portion of the lumber for which the action was brought as merchantable, was not prime or merchantable, respectively, as claimed, but was only refuse, and of a vastly inferior quality to prime or merchantable.
    The Court refused to allow the testimony, to which ruling the defendant excepted.
    The following receipt having been offered in evidence—
    
      " Received, Cedar Keys, Florida, September 28, 1867, of McCormick & Dawkins, 53,732 feet prime lumber; 166,115 feet merchantable lumber; 58,562 feet refuse lumber, and 107,675 feet round logs, in accordance with an agreement entered into by McCormick & Dawkins, at Cedar Keys, Florida, and John B. Sarson, of the city of New York, on the 17th day of June, 1867.
    “ M. W. DOWNIE, Agent.”
    —the defendant, to rebut the assertion of agency, offered in evidence the following copy of a letter, viz.:
    
      “ New York, September 5, 1868.
    “A. H. McCormick,
    “ Cedar Keys, Fla.:
    “ Dear Sir—I have received a letter from Col. Downie, in which he says the lumber at your mills does not agree with your representation of qualities and quantities, which is also borne out by the cargo of the Ann and Susan you shipped here to Leavitt, and drawn against the proceeds directing him to put the balance to my credit, why I do not know, as I never gave you any orders to ship any lumber for me; and if I had any, why should you draw against the proceeds yourself % The cargo, Mr. Leavitt tells me, as he is informed by his brokers, is the worst as to quality ever sent here; he sold it to arrive, and the purchasers when they saw it refused to take it, and it was re-sold at a heavy loss as refuse; the quantity was also short several thousand feet, and the captain of the vessel explains it, that to accommodate you he signed the bills of lading before he received the cargo and left part behind. Mr. Downie also writes me that he has drawn drafts on New York on my account in your favor; he has no authority to do so or act for me, and I shall not pay them.
    
      “ I shall be glad to hear from you what part of the money I have paid you are willing to return, as under the circumstances you cannot expect me nor will I receive any of the lumber.
    “ I should like to hear from you as early as possible, and have the matter settled.”
    Which copy defendant proved was a true copy of a letter written by him on the 5th day of September, -1867, in the office of Rufus W. Leavitt, in the city of New York, and inclosed in an envelope and stamped and directed to-the plaintiff, Abner H. McCormick, at his residence. at Cedar Keys,, in the State of Florida, and deposited in a box in the office of said Leavitt, where all letters of said office intended for the mail were deposited.
    Then the defendant offered to show by said Leavitt that his custom and the invariable course of business of his -office was to send the letters deposited in said box every afternoon for deposit in the post-office of the said city of New York.
    
      This evidence was objected to by the plaintiffs, and excluded by the Court, to which ruling the defendant excepted.
    After the defendant had closed his case, the Court ruled that there was but one question to go to the jury, viz., whether the contract offered in evidence by the plaintiff was executed on Sunday, and instructed the jury that if they found that the contract was not made on Sunday, to find a verdict for the plaintiffs for the amount claimed in the complaint, to which ruling and instruction the defendants excepted.
    The jury found a verdict for the plaintiffs.
    
      Mr. Moody B. Smith for appellant.
    The complaint was on a sale of lumber, certain amounts of three different qualities, at fixed prices.
    The answer was a general denial, except the contract, which is incorporated in the answer, showing a contract to purchase all the sawed lumber which might be on hand in the yard of the mill, at the amount, per thousand, for each quality stated in the complaint; and showing father that “ the amount in feet is to be ascertained upon measurement by some competent measurer, unless the parties can agree amongst themselves.”
    The amount of each quality is directly put in issue by the pleadings.
    Baling out evidence of the latter was error.
    “ Evidence of the number of feet of sawed lumber in the yard, without evidence of the quality, gives no data for the amount of damages, and no verdict for any particular sum can be given.”
    The Court erred in excluding the letter (Pritt v. Fairchild, 3 Camp., 305; Tousey v. Williams, M. M., 129; Gaskill v. Skene, 14 Jur., 597; 19 L. J.; 2 B., 275).
    The Court erred in ruling that, “ if they found that the contract was not made on Sunday, they should bring in a verdict for the plaintiff, for the amount claimed in the complaint,” because such instruction was encroaching upon the province of the jury.
    
      
      Mr. Livingston K. Miller for respondent.
    The offer to show that the lumber was unmerchantable was properly overruled, because the evidence was inadmissible, as no such defence had been set up (Beatly v. Swartwont, 32 Barbour, 293; Wight v. Delafield, 25 N. Y., 266 ; Butler v. McCauley, 38 Barb., 413 ; McKyrig v. Bull, 16 N. Y., 297).
    The second exception is to a refusal to admit a copy of a letter, which it was claimed was sent to the plaintiffs, and the object of which was to revoke the agency of one Downie, who had theretofore acted for defendant in" the transaction; the evidence was inadmissible, because no defence was pleaded under which the proof could be made.
    It was not competent to prove by a letter mailed from New York September 5, 1867, that an agency which had been acted upon, and mainly consummated on the 17th ¿Tune, previously; could be. thus cancelled (Millbank v. Dennistoun, 10 Bosw., 382).
    The only defence set up as to which there "could have been any evidence, was as to whether the contract was made on Sun-day; and although, as a matter of law, it would have constituted no defence had it been made on Sunday, the defendant could not complain if that question was submitted to a jury (Thompson’s Digest, laws of Florida, page 499).
   By the Court:

Monell, J.

There are two exceptions only in this case which we can examine, namely, to the exclusion of the evidence of quality, and to the exclusion óf a copy of the defendant’s letter. As to the third exception, namely, the instruction to the jury, we have no means of determining its correctness, as we are not furnished in the printed case with. any of the evidence on the part of the plaintiff, and we must presume" that it was sufficient to authorize the instruction. ',

The complaint alleged an agreement by the plaintiffs to sell and deliver to the defendant “ all the sawed lumber then in the yard of a saw-mill at Cedar Keys,'Florida, at a price per 1,000 feet as follows: For prime lumber, $17; for merchantable lumber, $15 ; for refuse lumber, $8; for round logs, $7.” The answer denied the complaint, and set up fraud in procuring the contract, and other defenses.

The printed case, without giving any of the evidence on the part of the plaintiffs, states that, after the plaintiffs had closed their case, the defendant offered to show that all the lumber for which the action was brought as prime, and a large portion for which the action was brought as merchantable, was not prime or merchantable, but was only refuse and of inferior quality. The evidence was rejected, and the defendant excepted.

Under the pleadings, I think the evidence was properly excluded. A partial failure of consideration could be set up only by way of recoupment of damages, and should be set up in the answer. If not set up as a defense,pro tanto, proof of a failure to perform the contract, where there had been a delivery of the commodity, would not defeat a recovery (Story on Sales, see.. 448). That the contract called for particular qualities or kinds of lumber, and the plaintiff had to prove delivery of certain numbers of feet of each kind and quality, did not make it proper to prove, unless it was made a defense by the answer, that the quality was inferior. The defendant having accepted a delivery, he could only recoup his damages if the quality proved inferior; and, therefore, as the pleadings were, the evidence was wholly immaterial, and for all these reasons was properly kept out of the case.

In regard to the exclusion of the copy of the defendant’s letter, little need be said. There was not sufficient evidence of the original having been sent, nor was there any notice to produce the original, all of which was necessary to let in secondary proof.

The case is so badly made up, that we are left mostly to conjecture as to what transpired on the trial. But as every intendment is in favor of the correctness of the judgment it must be affirmed.  