
    Calvin Tyler, 2nd, App’lt, v. James B. O'Reilly, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 18, 1891.)
    
    Evidence—Custom in selling goods.
    Plaintiff authorized defendant to sell lumber for him but did not state whether for cash or on credit. Defendant sold to P. on credit and P. failed. In an action by plaintiff against defendant the latter testified in his own behalf that he sold P. on credit, which was the usual way. Plaintiff then offered to show a universal custom to sell for cash. This was excluded. Held, error.
    Appeal from a judgment in favor of defendant. •
    Action to recover for a quantity of lumber which defendant had sold for plaintiff.
    
      James I. Ourtis {T. F. Push, of counsel), for app’lt; Alpheus Potts, for resp’t.
   Learned, P. J.

The facts may be briefly stated as follows: The plaintiff authorized the defendant to sell some lumber for him. Nothing was said about the terms of sale; whether for cash or credit. In a subsequent conversation between defendant and plaintiff’s son, defendant said he could have sold some and taken paper, but plaintiff would not like that; and plaintiff’s son said no. Afterwards defendant sold some to Powell, that is, he authorized Powell to take it. Powell proved to be irresponsible.

The defendant testified in his own behalf that he sold this lumber in the usual way of selling that kind of lumber; on credit.

Afterwards the plaintiff offered to show that it was the universal custom to sell lumber for cash, and that it was the exception to sell for credit. This was excluded and plaintiff excepted. The court non-suited the plaintiff.

As defendant has been permitted, in order to justify his action, to testify that it was usual, to sell such lumber on credit, it is plain that the plaintiff should have been permitted to deny this.

Further, the conversation between defendant and plaintiff’s son tended to show that before the actual sale defendant understood that he was to sell only for cash.

This made a question for the jury.

The duty of the agent is stated in 2 Kent’s Com., 622, and is so familiar that we need not repeat it. We think that the case should have gone to the jury and that the evidence above mentioned should have been admitted.

Judgment reversed, new trial granted, costs to abide event.

Landon and Mayham, JJ,, concur.  