#### Henry O’Neill *et al.,*Respondents, *against*John S. Crotty, Appellant.

(Decided January 5th, 1891.)

At the trial of an action for goods sold and delivered there was evidence that the goods were part of a larger quantity which plaintiffs had agreed with defendant to manufacture abroad, according to sample, and to import and deliver as they arrived ; but it also appeared that the price was a specified sum per gross, to be paid a certain number of days after delivery. *Held,*that this sustained a finding that the price of the goods delivered became due and payable at the expiration of the term of credit, and that plaintiffs might recover as on a sale and delivery of such goods, notwithstanding such delivery was under a contract for the sale of a greater quantity ; that proof of such special contract established no defense, a breach thereof not being pleaded as a counterclaim ; and that evidence that the goods did not conform to the sample was not admissible, as no counterclaim was set up on that ground.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered on the decision of the judge on a trial by the court without a jury.

The action was for the price of goods sold and delivered by plaintiffs to defendant.

The complaint alleged the sale and delivery, between June 11th and August 31st, 1889, to the defendant of 155 gross of fembroidery edging of the value of $310 and for which defendant promised to pay that sum on or before October 10th, 1889, and that no part thereof had been paid although the time within which payment' was to have been made had expired. The answer was a denial of all these allegations.

Upon the trial one of the plaintiffs, George Quackenbush, was called by plaintiffs to prove the sale. Upon cross-examination the defendants elicited that the 155 gross sued for was a delivery under a special executory contract for the sale of 200 gross of embroidery edging to be manufactured according to sample in 100 natural color and 100 white, at *475$2 per gross ; that after the first delivery under the contract (100 gross natural color on August 28th), the defendant complained about the quality of the goods, and the plaintiffs told him if he could not use them to return them ; that the defendant then required the white to be delivered, and plaintiffs delivered on August 31st, 55 gross of the white; that defendant then came to complain or to make a claim, and plaintiffs again told him that if he could not use the goods to return them; that the defendant then went away and brought an action against plaintiffs ; that plaintiffs were ready to go on and furnish the balance of the goods if he would have accepted them. There was some evidence from which it might be inferred that the goods were to be paid for as delivered; the terms of sale were “ 30 days dating and ten days time,” which meant that the defendant’s bills were to be dated thirty days from the date of delivery and he had ten days thereafter in which to pay.

At the close of the testimony of the witness Quackenbush, the plaintiff (who had objected to the cross-examination as to sale by sample on the ground that it was not pleaded and as immaterial, irrelevant and incompetent) made a motion to strike out the evidence in reference to the goods delivered conforming to the sample, and to strike out the evidence in reference to the special contract. The motion was granted arid the defendant excepted. No other evidence was offered by either party. Defendant then moved to dismiss the complaint, on the grounds, (1) that the plaintiff had failed to prove the cause of action set forth in the complaint—failed to prove any sale or agreement to sell 155 gross of edging and any delivery under such an agreement; (2) that the only sale shown by the uncontradicted evidence was of 200 gross of edging and that the proof was at variance with the complaint; (3) that the agreement for the sale of 200 gross was entire and a full delivery thereunder was a condition precedent to a recovery, and that plaintiff had failed to perform said agreement. The motion was denied and the defendant excepted. The court found as matter of fact a sale and delivery of 155 gross at $2 per gross which became due and *476payable on October 10th, 1889. The defendant excepted to this finding, but made no requests to find as to any fact or conclusion of law. The judge rendered judgment for plaintiffs for $317.30, with costs. Defendant appealed from the judgment to the General Term of the City Court, which affirmed the judgment; and from the judgment of the General Term defendant appealed to this court.

*J. Tredwell*Richards, for appéllant.

*Gteorge M.*Baker, for respondents.

J. F. Daly, Ch. J.

[After stating the facts as above.]— Where separate deliveries are contemplated in a contract of sale, and payments are to be made upon each delivery, an action may be maintained therefor as for the sale and delivery of the particular goods sued for. In such an action the vendee may set up the contract for the whole, plead the failure of the vendor to make other deliveries under it, and claim damages for such breach; but if he set up the breach without a counterclaim it is no defense to the action. In *Avery*v. *Wilson*(81 N. Y. 341), there was an indivisible contract and a delivery of part with a waiver of a complete delivery of the whole as a condition precedent to payment for such part. The action was for goods sold and delivered. Defendant set up the special contract for the whole, and a refusal to deliver the residue. The court said : “ While the defendants had the right to recoup any damages sustained by a failure to deliver the glass as agreed upon, or to bring an action to recover the amount of the same, they cannot under the pleadings in this action prevent a recovery for the value of the glass actually delivered, as they have'yot set up a counterclaim, but simply based their defense on the nonperformance of the contract.”

This rule undoubtedly governs the ease of an agreement to pay for goods as delivered, and in the case before us there was some evidence from which it might be inferred that such' was the contract between these parties. The goods were to *477be manufactured abroad and imported, and deliveries were made as they arrived; “ bills were to be dated 30 days ahead from the date of delivery, and if he paid his bills in ten days he was to get a seven per cent, cash discount; ” . . . “the credit for these goods expired October 10th (which was 40 days after the last delivery) ; ” . . . “ they were sold at two dollars a gross, thirty days dating and ten days time.” This was the testimony of the plaintiff and was not contradicted. There was evidence, therefore, to sustain the finding of the trial judge that the amount sued for became due and payable October lOth, 1889; and that is all we are required, as an appellate court, to inquire into upon a simple exception to a finding of fact. We are only authorized “ to review the facts for the purpose of ascertaining whether any allowable construction of which they are capable will warrant, the conclusion of fact at which the judge or referee has arrived” *(Stilwell*v. *Mutual Life Ins. Co.,*72 N. Y. 388). We cannot review the facts “ after an affirmance by the General Term, so long as there is any evidence tending to support the findings” *(Potter*v. *Carpenter,*71 N. Y. 75).

The defendant therefore having become indebted, as found by the trial judge, for the portion of the goods delivered, an action as for a sale and delivery thereof was maintainable ; and the motion to dismiss the complaint was properly denied, notwithstanding such delivery was under a contract for the sale of a greater quantity. There was no variance between the pleading and the proof..

The exception to the granting of the plaintiff’s motion, made at the close of plaintiff’s ease, to strike out the evidence elicited by defendant upon cross-examination of plaintiff’s witness in reference to the goods delivered not conforming to the sample, and also the evidence in reference to the special contract, does not show error. No claim for damages on account of the goods not conforming to the sample was set up in the answer; and proof of the special contract constituted no defense, ás complete delivery of the whole of the goods thereunder was not a condition precedent to payment. It is proper to say here that, under the denial in the answer of a sale of *478155 gross, the defendant was entitled to show exactly what the contract of sale was, and if this involved proof of a special contract for 200 gross he was entitled to prove it; for there was no way of disproving plaintiffs’ allegation except by showing the facts *(Dietrich*v. Dreutel, 43 Hun 342; *Manning*v. *Winter,*7 Hun 482). The trial judge allowed this proof to be given by cross-examination of the plaintiffs’ witness; and I understand that in striking out the evidence of the special contract at the close of the testimony he did no more than rule that such special contract as proved constituted no defense under the circumstances disclosed by the testimony. The defendant offered no evidence to show that payments under the contract did not become due until all the deliveries thereunder were made, but left the plaintiff's evidence in that respect uncontradicted. Under those circumstances the special contract was no defense and evidence thereof was immaterial.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concurred.

Judgment affirmed, with costs.