
    Charles W. Manning, Respondent, v. National Saw Company, Appellant.
    Second Department,
    May 1, 1908.
    Sale — appeal —judgment affirmed.
    The defendant in an action for goods sold and delivered who has neither moved to dismiss the complaint, nor objected to the evidence or charge, is not entitled to a reversal where the verdict is neither contrary to law nor against the weight of evidence.
    Appeal by the defendant, the National Saw Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Peter Flint [Robert D. Elder with him on the brief], for the appellant.
    
      William H. James, for the respondent.
   Woodward, J.:

Just what was expected to be accomplished by this appeal is not very evident from the record or the brief of the appellant. The plaintiff’s cause of action rested upon the allegation of the complaint that c‘" heretofore and on or about the 13th day of April, 1904, the plaintiff sold and delivered to the defendant merchandise consisting of 12,805 feet of 4/4 Log Run Beech Lumber, of value and amounting in the aggregate at the prices agreed upon between the parties of twenty-four dollars per thousand feet, to the sum of three hundred and seven and 32-100 dollars, no part of which has been paid, and the said sum of three hundred and seven and 32-100 dollars is now due and owing to the plaintiff from the defendant, with interest thereon from the 13th day of May, 1904.” The answer to this clause of the complaint is a denial, except that it is admitted that no part of the claim has been paid, and the parties went to trial upon the issue of whether this lumber had been sold and delivered to the defendant by the plaintiff at the agreed price of twenty-four dollars per thousand. At the close of plaintiff’s case there was no motion made to dismiss the complaint, and our attention is not called to any objection or exception interposed to the evidence. The defendant was permitted to put in evidence a good deal of testimony tending to show that the plaintiff knew the purpose for which the lumber was desired, and that, while the amount was concededly delivered as shown by plaintiff’s invoice, it was not adapted to the defendant’s uses, for the purpose of showing the breach of an implied warranty, but at the close of defendant’s case there was no motion to dismiss the complaint upon any ground, and it was sent to the jury upon the issues presented by the pleadings and the evidence. There was no objection or exception to the charge of the court by either party, and the defendant having been permitted to go outside of its pleadings and to have the advantage of a defense not pleaded, it is difficult to understand what grievance it has to be remedied by an appeal. The verdict is not contrary to law, nor is it against the weight of evidence. The cause of action pleaded by the plaintiff was the sale of lumber under a definite description ; he agreed to furnish a certain amount of lumber of certain dimensions and quality at a given price, and if he furnished this lumber (and it is conceded that the quantity was furnished) at this agreed price, there was no room for an implied warranty that it was fit for the defendant’s purposes. The jury heard all of the testimony ; they heard the claims of the defendant that the coni ract was not for this quality of lumber at an agreed price, but that it was for lumber to be used by the defendant in making hand saw handles, and that it did not prove available for that purpose. This was certainly giving the defendant all that it could fairly claim, and the jury taking the law of the case from the court, found that the contract alleged by the plaintiff was the real one entered into between the parties, and that determination should not be disturbed.

The judgment and order appealed from should be affirmed, with costs.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  