
    GEORGE ALGER v. LEWIS MORRILL.
    May Term, 1896.
    
      Evidence.
    
    Upon the issue whether the defendant had accounted for all the hay which he drew away, evidence of the space occupied by the hay taken and the number of cubic feet required to make a ton was admissible.
    General assumpsit. Plea, the general issue. Trial by jury at the September term, 1895, Orleans county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.
    
      John Youug and Theophilus Grout for the defendant.
    
      Cook & Redmond for the plaintiff.
   TYLER, J.

It appeared that the plaintiff sold the defendant all the hay in the barn on the plaintiff’s farm, to be weighed as drawn by the defendant and paid for by him at the actual weight. The first load, which was to be as large as the defendant could draw, to be at the rate of eight dollars a ton, and the remainder, which was of a' better quality, at ten dollars a ton. The defendant’s evidence tended to show that he drew all the hay at four loads, and that the total weight was nine thousand eight hundred and thirty pounds. The plaintiff claimed that the defendant'did not account for all the hay be drew, and it was an issue at the trial whether the nine thousand eight hundred and thirty pounds comprised all the hay drawn by him.

The plaintiff was permitted to introduce evidence tending to show the extent of the space in the barn from which the hay was taken, and how much space a ton of hay would occupy. The defendant contends that this was error on the ground that no evidence had been introduced tending to show that the defendant in fact drew more than four loads, or that their weight was more than nine thousand eight hundred and thirty pounds.

The evidence was admitted upon a statement being made by the plaintiff’s counsel that later in the trial he would introduce evidence “tending to show that the defendant took hay from the barn that-he did not get weighed under the agreement.” But it was clearly admissible as substantive evidence tending to establish the plaintiff’s claim. It was competent to show that the amount of hay accounted for could not have filled a given space — that it would have required more than nine thousand eight hundred and thirty pounds to fill it. The question whether this evidence could be relied upon, considered by itself and in connection with the defendant’s denial that he drew more than four loads, seems to have been carefully submitted by the court to the jury.

Judgment affirmed.  