
    Newell W. Sheffer, Resp’t, v. George Harmon, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
      Filed January 11, 1889.)
    
    Pleadings—When question op pact eaised.
    When the pleadings present a question of fact as to what the terms of the contract entered into really were, and the evidence in relation thereto is conflicting, it raises a question of fact which should properly he left to the jury to pass upon,- and it is error for the court to direct a verdict.
    Appeal from a judgment entered upon a verdict of the Monroe county court, directed by the court, and also from an order denying defendant’s motion for a new trial, made upon the minutes.
    
      Davy & Davy, for app’lt; John M. Dunning, for resp’t.
   Haight, J.

The plaintiff, in his complaint, alleges that on the 18th day of October, 1882, the plaintiff let and rented unto the defendant one steam engine upon the express understanding and agreement that the defendant should take the engine and retain the same as long as he desired, not exceeding a reasonable time, and then return the same to the plaintiff in as good condition as when taken, reasonable wear excepted, and that for the use of the engine the defendant agreed to pay the plaintiff $2.50 for each and -every day until it was returned ; that the engine had never been returned to the plaintiff and that no part of the amount agreed to be paid for the use thereof had been paid.

The action was brought on the 30th day of October, 1887. The defendant in his answer, admits the hiring of the engine and that he agreed to pay $2.50 for each day that he used the same, and as a second defense alleges that at the time the plaintiff let and rented the engine to him the plaintiff represented and stated that the engine was in good condition and repair and would do good work, and that, relying on such representations, the defendant was induced to take said engine and endeavored to operate the ■same, but upon a trial thereof the engine was found to be defective and out of order and in a condition unfit for doing the work for which the defendant hired it, and that the defendant, by reason of such defective condition, was unable to use the engine.

Upon the trial the plaintiff testified that one Theron C. Brown came to him and told him that the defendant Harmon had sent him there to hire the engine; that he asked how much he wanted a day for it and was told twenty shillings a day; that he told Brown that the engine was about a mile north of Scottsville; that he could take it for that and when he got through with it to return it; that Brown said he would draw it back as far as Riga Corners.

Theron C. Brown was sworn as a witness for the plaintiff and testified that he had a conversation with the plaintiff by direction of the defendant Harmon in the month of October, 1882: “ I asked Sheffer about his engine and that Sheffer told me where I could get it; I asked him where it was and he said it was down near Scottsville, with a man named Anton; he said if we wanted it we would have to go and get it; he was busy; we could use it and. after we got through with it we should bring it back home, I told him I ■did not know whether we could bring it back home again, but we could bring it as far as Riga Corners and he said that would do; I came home and told Harmon and he sent me for the engine.” He further testified that he did not remember whether anything was said about the price.

The defendant George E. Harmon testified that he saw the plaintiff, Sheffer, about the middle of October and told him he heard that he had an engine he was not using and that he said he had: “I asked if it was a good engine and he said it was; I asked him if he wanted to rent it and he said, yes, he would rent it; I said what do you want a day for it; he said he wanted three dollars a day for it; he asked what I wanted to use it for and I told him that I lacked a little power in the mill; that the spring creek was shrinking and that I had more orders than I could fill and I wanted to augment the power; I told him that if he had a good engine, I could get along; he said all right; I will let you have the engine for that work for three dollars a day; I asked if it was a good engine and he said it was; I said if it is a good engine I will give you $2.50 a day for what time I use it; he said if it was not a good engine it will not cost you anything; he said you go and get it and try it; I said I would get-it and try it.”

Other evidence was given on behalf of the defendant tending to show that the engine was out of order and could not be used.

At- the conclusion of the evidence the court directed a verdict in favor- of the plaintiff for $1,000, to which exception was taken by the defendant.

We are of opinion that this was error. Under the pleadings a question of fact was raised as to what the Contract was; whether or not the engine was represented to be a good engine, and as to whether it was' not understood that if it was not a good, engine it would not cost anything to get it and try it. The parties differed in their testimony upon this branch of the case, thus making a conflict which raised a question for the jury to dispose of.

The trial court appears to have been of the opinion that the final contract between the parties was made by Brown, acting as the agent for the defendant, but it will be observed, upon the examination of his testimony, that there was ho complete contract made by him. It is true some conversation took place as to the place where the engine should be returned to, and as to' the place at which the engine could be found, but he does not recollect that anything was said about the contract price that should be paid for the use of the engine, so that whilst the court relies upon his evidence as furnishing the- final contract between the parties, it determines the amount that was agreed to be paid for the use of the engine when no such amount was testified to by Brown. We cannot adopt.this theory of the case. There was a bill of particulars called for and served, but nothing in the demand for the bill of particulars called upon the defendant to state with whom the contract for the - hiring was made, and nothing in the bill of particulars as-served which specifies with whom the contract was madé. The only thing bearing upon the question appears in the seventh clause or subdivision of the bill of particulars which, as amended, states that “the time and place-the plaintiff was informed of the intended use which the engine was to be put to was where and when the arrangement in relation to the hiring of it was made, and the name-of the informant is the defendant.” There is nothing in this which limits the defendant from showing that the contract was made with himself instead of with the agent,' Theron 0. Brown.

For these reasons the judgment and order should be reversed, and a new trial ordered, costs to abide event. Barker, P. J., Bradley and Dwight, JJ., concur.  