
    Curtis S. Cummings and Oscar L. Everest, Respondents, v. Alvah J. Zimmer, Appellant.
    
      Bale —proof of delivery and as to the quantity delivered.
    
    In an action brought to recover for services rendered in tanning certain hides the defendant sought, to set off against the plaintiffs’ claim the value of 1,595 hides, which he claimed to have delivered to the plaintiffs to be tanned, but which had not been returned. The alleged shortage occurred in three lots, containing respectively 1,580, 1,570 and 840 hides. The hides in question were done up in bundles, and it was possible to tell from the size of a bundle how many hides it contained. One Hollett, the person who sold these hides to the defendant, bought them from other persons, and counted the hides in a few of the bundles, and being satisfied as to them, accepted the rest without counting, except so far as to verify the number of bundles charged in the invoice received by him. After selling the hides to the defendant at the invoice count Hollett delivered them to the plaintiffs at their tannery, where the bundles were counted and stored, part of them in an open shed. The hides in the bundles were not counted until they were put into the “ works.”
    The referee found that the plaintiffs had not failed to return the 1,595 hides.
    
      Held, that this finding was not justified by the evidence;
    That a discrepancy, amounting to 1,595 hides in a total of 3,990, was too great to have escaped the notice of Hollett and the defendant, and that it was more probable that the hides in question were lost or stolen after they had come into the possession of the plaintiffs.
    Appeal by the defendant, Alvah J. Zimmer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Eulton on the 17th day of May, 1895, upon the report of a referee.
    
      N. H. Anibal, for the appellant.
    
      Edgar A. Spencer, for the respondents.
   Parker, P. J.:

This action is brought to recover for services rendered the defendant in tanning for him a large number of hides, at various times between March 2 and June 21, 1893. There is no claim but that the plaintiffs tanned and prepared between those dates the number of hides for which they have charged, and that the prices charged, therefor were those agreed upon, except that the defendant claimed a discount of six per cent on the whole amount of the bill, which has been allowed him by the referee.

The contest was over the claim made by the defendant that he had delivered to the plaintiffs 1,595 more hides than were tanned and returned to him, and he sought to set off the value of such hides against the plaintiffs’ demand. The referee has disallowed such claim, and reported in favor of the plaintiffs for the full amount of their bill, less the six per cent discount, and from the judgment entered thereon the defendant brings this appeal.

A careful examination of the evidence in this case leads us to the conclusion that it hardly sustains the findings of the referee. The defendant commenced furnishing hides to the plaintiffs to be tanned for him in October, 1892. From that date up to the time the bill annexed to the complaint in this action was rendered to him, he •claims to have delivered 9,855 hides. These hides were all purchased by the defendant from one Hollett, who was a dealer in hides at Gloversville, and to whom they were shipped in cars from other places. They seem to have come to Hollett in different lots, done up in bundles, with a specified number of hides in a bundle, and an invoice accomjianied each lot. When received by Hollett they were unloaded from the cars, some in the railroad freight house and ■some in liis hide house. Enough of the bundles were opened and the hides therein counted to satisfy Hollett and his assistants that the bundles were full and would hold out, and beyond that only the number of bundles were counted to verify the amount charged in the invoice. They were sold by Hollett to the defendant in lots, as they came to him, and at the invoice count. Some eight differ-; ent lots of hides, consisting of “ veals,” “ deacons ” and “ grasses,” and each lot containing a different number, were sold to the defendant; and it appears from the evidence of Hollett and his employee Hart, that such lots were delivered to the plaintiffs at the hide house and the freight house, and taken away by their employee Stewart. Among these lots was a lot of 1,580 wet deacons and another lot of 1,570 dry deacons. There was also a lot of 2,499 deacons, being the first lot of hides purchased from Hollett, and another lot of 840 deacons, and these lots were the only deacons in the whole purchase. Now, all of the hides which the defendant claims to have so purchased and to have paid Hollett for at the invoice count are accounted for in the bill rendered by plaintiffs as having been tanned, except 1,595 deacons. The lot of 2,499 deacons is accounted for in such bill as one lot, No. 9, except that it is there given as 2,495, a shortage of only four hides. It seems, therefore, that the shortage complained of must have occurred in the other three lots. It is true that the hides were not all counted by Hollett or the defendant. The invoice count was taken to be correct in their deal, but it is hardly credible that so large a shortage can be accounted for by a deficiencj'- in their count. Both Hollett and the defendant testify that they saw the different lots, and tell just wheie they were piled, and say that they could judge very closely from the size of the bundles and piles the amount of hides that was there. The lot of 2,499 deacons would seem to liave gone to the plaintiffs and to have been tanned by them. They are specified in tlioir bill of hides as tanned and returned. Of the ether three lots one whole lot and more has never been returned. It is quite clear that both of the two lots of 1,580 and 1,570 were taken by Stewart. lie testifies that he hauled them, and tells where he stored them’ at the plaintiffs’ tannery, and under the circumstances the weight of evidence seems to be that the plaintiffs have had them, and- should account for whatever they actually contained. When Stewart delivered to Mingus, the plaintiffs’ employee at the tannery, the hides which he drew, Mingus did not open and count the hides in the bundles. That was not done until they were put into the works ; and all had not been opened and so counted when Mingus left the plaintiffs’ employment. The bundles were counted and piled some in an open shed and some in other places; and Mingus’ system of counting was no better or more accurate than was the one adopted by Hollett and defendant. It seems quite plain that all of the eight different lots which were sold by Hollett to the defendant were delivered to the plaintiffs. That is, they were taken by their man at the hide and freight houses, and that amounts to a delivery and makes them responsible for all lie' took. According to the count as invoiced to Hollett, such lots amounted to the number which the defendant claims. And, while such count is not as accurate and satisfactory as if each hide had been counted, we cannot believe that it fell short to so great an amount as 1,595 hides. It seems to us that, on the evidence, the plaintiffs can be fairly charged with as many hides as were in the several lots of deacons which were purchased of Hollett. Such lots were apart by themselves and easily identified, and Hart, Hollett and Stewart all seem to agree that all of them were received by Stewart and hauled away by him. As to the number of hides in those lots the count made by Hollett and the defendant, and their estimate of them, was as carefully made, and seems much more likely to be correct than that made by the plaintiffs. Out of the three lots from which the shortage must have come, viz., the 1,580, the 1,570 and the 840 lots, the first two were certainly received by plaintiffs, and the shortage amounts to more than one-third of the whole. It is not reasonable to suppose that so large a deficiency arises from a shortage in the bundles as invoiced. The defendant and Hollett, who both inspected them, and Hollett and his men, who counted the bundles, could estimate much nearer than that, and would have at once noticed such a discrepancy. Hollett could not have sold and the defendant would not have purchased had such a shortage existed in the several lots when unloaded and inspected by them. It is more likely that so great a loss has-occurred after they went into the plaintiffs’ possession either by being mixed with other hides in process of tanning or by theft from, their sheds. For these reasons we conclude that the judgment should he reversed.

All concurred.

Judgment reversed, referee discharged, a new trial granted, costs to abide the event.  