
    Robert Gilbert, Resp’t, v. John B. Manning, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Sale — Evidence as to market price.
    When goods are sold “ at the market price,” and the parties to the sale agree that the market price is to be that which the paper quotes, a quotation from the publication nearest to and preceding the sale is admissible in an action for the purchase price to show the market price at which such goods were sold.
    
      (Whelan v. Lynch, 60 N. Y., 469, distinguished.)
    Appeal from a judgment of the Erie county court, entered upon a verdict of a jury, and also from an order of the same court denying the defendant’s motion for a new trial, on the minutes.
    
      Giles E. Stillwell, for resp’t; H. C. Bay, for app’lt.
   Macomber, J.

A recovery was had by the plaintiff upon a cause of action arising upon an order made by the agent or foreman of the defendant for the purchase from the plaintiff of quantity of barley. The plaintiff brought a load of such barley to the defendant’s malt-house on the 12th day of October, 1878, and received from the man in charge the following memorandum: “C. F. M. House, October 12. Bought barley of R. Gilbert at market price; 90 bushels, 33-48. Ed. Seitz.” The barley represented by this receipt was actually delivered by the plaintiff to-the defendant, and received by the latter, and retained by him and used in his business. Though the complaint is framed so as to-cover another quantity of barley which was never actually received by the defendant; yet, upon the trial, such additional cause of action seems to have been abandoned, and the case was, apparently by the consent of the plaintiff’s counsel, submitted to the jury by the learned court solely upon the claim for this 90 and 33-48 hundreths bushels.

The question upon this appeal is, whether or not there was sufficient evidence of the market price to warrant the rendition of the judgment.

The only point urged by the appellant’s counsel which merits consideration relates to the admission of the market quotation of barley in a newspaper published in the city of Buffalo. The quotation as contained in the Commercial Advertiser of October 11, 1878, was admitted in evidence, as follows: “ Barley, state, held at $1.10 and $1.15.” This was objected to, as incompetent, and also upon the ground that the statement does not give the market price, but only what barley is held for, and it is argued that such evidence does not disclose the market price. After the reception of the evidence and the ruling of the court, the learned counsel for the plaintiff attempted to withdraw the evidence, but so far as can be made out from the case, such attempt was not successful, the defendant’s counsel not consenting to the same-It appears in a preceding portion of the case, by the evidence of the plaintiff, that not only was the market price agreed upon by him and the defendant’s agent, but that the means of ascertaining such price were also determined. This witness says: “I told him about 92 or 92-J- bushels.” ' Well,’ he says, ‘we will pay you the market price for that barley.’ ‘Well,’ I says, ‘what do you mean by the market price?’he says, ‘Just what the paper quotes.’ ‘Well, I went up, I left him then and went upon the street and I bought, I think, the Commercial, and I saw the quotations, and I thought that was as good as anybody would do.”

This case, therefore, is clearly distinguishable from that of Whelan v. Lynch, 60 N. Y., 469, where the particular mode of determining the market price had not been agreed upon.

From the evidence, the jury was justified in deciding that the barley was of the quality represented by the plaintiff to the defendant’s agent.

The circumstance, that the paper in question was dated the 11th of October, instead of the 12th, is unimportant, because the defendant testified that, on the 12th day of October there was not any quotation of barley in the Buffalo papers. The criterion, therefore, which the parties had by their agreement selected, namely, the quotation in the market column of the Buffalo papers was satisfied by the publication nearest to and preceding the time of the sale and delivery of the barley under the agreement already mentioned.

The judgment should be affirmed, with costa

Barker, P. J., and Dwight, J., concur.  