#### Henry B. Shaen *et al.,*Pl’ffs, *v.*Samuel Gumpert, Def’t.

*(City Court of New York,*

*General Term,*

*Filed March 27, 1889.)*

Contract—Rescission of—Directing verdict on opening of defendant's counsel—When error.

In a suit in the names of the company’s agents, being trustees of an express trust, with whom the contract for the purchase of the goods in question was made, a judgment was directed upon defendants’ opening, but the answer to the complaint not only "set up a counter-claim (which plaintiff allowed), but alleged that the goods for which the action was brought were not equal to the representations made at the time of the sale; were not merchantable, and were returned to the plaintiffs; and the defendant, in his opening, did not waive these defenses. *Meld,*(1.) That the trustees of an express trust- are the proper plaintiffs, under section 449-of the code, in a suit for the value of the goods sold by them. (3.) That if the return of the goods was accepted by plaintiffs, the defense amounts to a rescission of the contract. (3.) That it was error in the trial court to direct judgment for plaintiff for the amount claimed, less the counterclaim, on the defendants’ opening.

Appeal from judgment entered on verdict directed in favor of plaintiffs.

*Phillips & Wray,*for app’lt; *Souther & Steelman,*for resp’t.

Per Curiam.

The plaintiffs are agents for Elston & Balston, manufacturers in England. The contract with the defendant was made by the plaintiffs, who, as trustees of an express trust, rightfully brought the action. Code, § 449.

After the plaintiffs had rested their case, the defendant’s counsel opened the defense to the jury, and on the conclusion of the opening, the plaintiffs’ counsel moved for judgment in favor of the plaintiffs for the amount claimed, with interest, less $123, the amount of a counter-claim pleaded by the defendant. The answer, however, pleads more than a counter-claim. It alleges that the goods ordered of the plaintiffs (and not covered by the payment of $265, made by the defendant and credited by plaintiffs), were not equal to the representations on which -they were bought, l hat they were unmerchantable, and were returned to the plaintiffs. Assuming that such return was accepted,_ the-defense pleaded amounts, practically, to a rescission of the *297contract. *Collins*v. *Brooks,*20 How. Pr., 327; *Sturtevant*v. *Orser,*24 N. Y., 538.

The opening of counsel, as printed in the case, does not show any waiver of this defense, but a certificate or opinion appears in the case, signed by the trial judge, wherein he states “that defendant’s counsel, in his opening to the jury, among other things, stated to the court and jury that the defense of which the answer availed, and upon which the defendant relied, was a breach of warranty.” Although this certificate forms part of the case on appeal, it must be read in connection with what precedes and follows. So considered, it is evident that the certificate is founded on an erroneous impression or construction of what occurred, for the language of counsel in his opening, his motion to amend, his request to go to the jury, and the objections made and exceptions taken to the course of the trial judge, all indicate that he not only intended to waive nothing, but was determined to insist upon the right to have all the defenses pleaded go to the jury. We are of opinion, therefore, that the trial judge erred in his construction of the opening- of the defendant’s counsel, and that the latter said nothing to warrant the conclusion that the defense of rescission was abandoned. For these reasons, the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.