Jacobson v. E. T. Slattery Co.

Per Curiam. The plaintiff brought his action for the reasonable value of goods sold and delivered to the defendant. The answer of the defendant, as amended at the opening of the trial, admitted the allegations of the complaint, and set up an affirmative defense of rescission of the contract, for three alleged breaches of warranty; an implied warranty that the bulk of the merchandise should correspond with the sample in quality, and an implied and an express warranty that the merchandise should be of merchantable quality. At the close of the defendant’s case and without any evidence being offered for the plaintiff, the learned trial court held that there was insufficient evidence to go to the jury and directed a verdict for the plaintiff. The defendant, therefore, must be given the benefit of every fact and inference which may be drawn from the evidence most favorable to its contention. (Eastland v. Clarke, 165 N. Y. 420, 425; Atlas Shoe Co. v. Lewis, 202 App. Div. 244, 245.) The evidence that there was a sale by sample did not violate the parol evidence rule and was, therefore, improperly stricken out. (Newburger v. American Surety Co., 242 N. Y. 134, 142; Williston Sales [2d ed.], § 254, p. 514.) The order is not a complete contract. It does not disclose the character of the merchandise, whether it was cotton, wool or silk. The order gives a description of sizes, quantities, colors and prices, but the kind of article and the quality of the merchandise was to be determined by samples. (Brigg v. Hilton, 99 N. Y. 517; Emmett v. Penoyer, 151 id. 564; Henry & Co. v. Talcott, 175 id. 385.) There was sufficient evidence to raise a question of fact for the jury whether or not there was a sale by sample. The evidence also presented a question of fact for the jury as to whether or not the merchandise was merchantable. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Present — Clarke, P. J., Merrell, Finch, Martin and Burr, JJ. Judgment reversed and new trial ordered, with costs to the appellant to abide the event.