
    Lewis Richards, App’lt, v. Lewis B. Ross, Resp’t.
    
      Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Sale—Proof.
    Evidence that defendant selected the harness, ascertained the price, ordered it changed so as fit the team and, after the harness was delivered to a third person, said that it was all right and that the plaintiff would get his pay, is sufficient to establish a sale of the harness to defendant.
    Appeal from a judgment, reversing a judgment rendered in a justice’s court.
    
      W S. Moore, for app’lt; George L. Bachman, for resp’t.
   Haight, J.

This action was brought to recover the sum of $24, the purchare price of a harness alleged to have been sold by the plaintiff to the defendant. The justice rendered judgment for the plaintiff, but the county court reversed it upon the ground that the evidence submitted by the plaintiff was not sufficient to sustain the judgment. The question thus presented involves a careful examination of the evidence. The plaintiff testified that about the 18th of November last—

Mr Ross came into my store, and said he had sold the big team of horses to Mr. Hemingway, and he had to have a set of harness for them. He looked at two or three different sets of harness, and said this one would do if I would change it. ‘ Fix it up a little; it would be all right.’ I had the bill charged to Mr. °Ross. I did not know this stranger. Q. What further was said, if anything, at that time ? A. On the 24th, this stranger came along, and I let him have the harness. On the 17th or 18th of November, when Mr. Ross was there, I told him I had charged the harness to him. Q. What did you do there at that time about this harness ? A. I showed it to him. He said, 1 That will do. That is all right.’ Some of it had to be changed,—made larger; and I fixed it. Q. What further was said, if anything? A. I told him I had charged the harness to him. Q. Was anything said about the price? A. $24; yes, sir. Q. Have you now stated all that you remember of that conversation at that’time? A. At that time; yes, sir. Q. Was anything said about the time the harness would be ready, or when he would come for it ? A. About a week. Q. What did you do about it afterwards ? A. I changed the main strap three or four inches. It had to be made a little larger. Q. Did any one afterwards come for the harness? If so, when was it? A. It was on the 24th ; this stranger, Mr. Hemingway, came. He was alone. Q. What did he do with it? A. Carried the harness over to the public sheds,—Mr. William Baron’s sheds. Q. Is that all ? A. That is all. Q. Did you afterwards have a conversation with Mr. Ross about the payment for the harness ? A. Yes ; Mr. Ross came into my store about six or seven days after the 24th, and said the harness was all rigt, and that I would get my pay. Q. Has this harness ever been paid for? A. No, sir."

It appears to us that this evidence was sufficient to establish a sale. The defendant selected the harness, ascertained the price, ordered it changed so as to fit the team, and, after the harness was delivered, said that it was all right, and that the plaintiff would get his pay. The learned county judge characterized this testimony as “ absurd to purpose that the defendant would be buying harnesses for horses that he had sold.” We do not think this conclusion necessarily follows. The defendant said that he had to have a set of harness for them. We think the inference that, the harness was included in the sale with the horses is permissible.

It further appeared that the defendant had not sold his horsesto Hemingway; that the sale was not completed, and the horses never left the possession of the defendant; that, when Hemingway took the harness from the plaintiff’s shop, he took it to the defendant’s residence, where, it ever since has remained. True, the defendant’s son, who still resides at home with his father, claims to have purchased the harness from Hemingway, but the justice evidently did not believe this. This son had testified that he was with Hemingway when Hemingway purchased the harness ; that they went into the plaintiff’s place together ; that the plaintiff took down several harnesses, and showed Hemingway, until he came to one that suited him; that he then said he would fix the harness, so it would be all right, and have it ready within a week; and that nothing was said about the price. This was positively-denied by the plaintiff. The defendant Ross was sworn as a witness in his own behalf, but he carefully avoids denying the essential statements made by the plaintiff. He starts in his testimony by stating that he was not in the plaintiff’s store on or about the 17th or 18th of November, last, with one Hemingway. The plaintiff did not state that the defendant was in his store with Hemingway. The defendant then skips over that which was detailed by the plaintiff in reference to the selecting of the harness and the ordering of it, and next speaks of the bringing of the harness by Hemingway to his place. He does not deny the conversation in which the plaintiff told him that he had charged the harness to him, and that he said that it was all right, fie only denies that he said that he would pay for the harness, or that the plaintiff would get his pay therefore. It is therefore apparent that the justice had good reason for believing the testimony of the plaintiff to be correct.

The judgment of the county court appealed from should be reversed, and that of the justice affirmed, with costs in this and the county courts.

All concur.  