#### ASTORIA VENEER MILLS v. LOOSCHEN.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Sale—Rescission by Parties—Evidence.

In an action on a note given for the price of goods, defendant testified that he .told plaintiff the goods were not as represented, and asked him to take them back; that plaintiff at first refused, stating that he had used the note for discount; that defendant said, “You can allow me for that later on; * * I am in no hurry,” to which plaintiff replied, “All right; let her come back;” that defendant then reshipped the goods to plaintiff, who retained them. *3eld,*that it was for the jury to say whether there-had been a resale of the wood to plaintiff.

Appeal from circuit court, New York county.

Action by the Astoria Veneer Mills against John W. Looschen to recover the sum of $270.83 for goods alleged to have been sold by plaintiff to defendant, and also the sum of $336, the aggregate amount of two notes alleged to have been made by defendant, together with interest from the date of the alleged sale and from the time of the alleged making of the notes. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

John Ford, for appellant.

John Delahunty, for respondent.

PARKER, J.

The court directed a verdict in favor of the plaintiff for $633.37. The defendant insists that, as to $288.64 of such *754amount, there was a question for the jury, and our examination of the evidence leads us to-agree with him. For a number of years' prior to the transaction in dispute, the defendant, who was a piano case manufacturer, had been accustomed to purchase wood of the plaintiff suitable for his business. Such purchases were made through Jared J. Looschen, who had general charge of the business of this defendant. In the early part of September, 1892, Jared J. Looschen called at the plaintiff’s place of business and inquired for “mahogany veneer with a little figure in it.” He purchased one lot, and then the salesman, Reed, called his attention to some finely-figured wood. The figure pleased Looschen, who asked the price of it, and upon being informed that it was five cents a foot he said he would give four for it. The offer was not then accepted, but Reed said he would submit it to Mr. Williams on his return, who decided to accept it. The wood was at once shipped to the defendant, but before it reached him he received a bill from the plaintiff, and, following their usual method of dealing, he at once sent his note to plaintiff for the full amount of the bill. When the wood came to his attention, he discovered that it was not mahogany veneer, but California redwood, which could not be used in his business. Both Looschen and the salesman, Reed, agree that nothing was said about California redwood, and that no other kind of wood was referred to by name than mahogany veneer. Indeed, their testimony is not in conflict in any respect. As soon as the wood reached Looschen, he opened it, and, finding that it was not mahogany, he went at once to the plaintiff’s factory, where he saw the president of the company, and Looschen describes what took place as follows:

> “I told him that the mahogany that they had shipped me was California redwood, and billed as sequoia, and was not fit for piano cases, and that, if I used it, it would come back from my customers, and that I wished to send it back to them. And he said, ‘Why, certainly, Looschen; I could have told you that any day,—that it was not fit for piano cases, and he ought not to have sold it to you.’ He asked me who sold it to me, and I told him Mr. Eeed. I said, T want to send it back.’ He says, ‘That will be all right; you better wait and see later, because I don’t want to interfere.’ And he says, ‘Alec is out of town, and you better wait and see him.’ ”

Looschen did not wait to see Alexander Williams, the person referred to as “Alec,” but returned the California redwood to the plaintiff. Alexander Williams at once reshipped it to the defendant, whereupon Looschen called upon him, and a conversation ensued upon the subject of its redelivery to the plaintiff, with a credit to the defendant for the purchase price. They differ as to what took place. Williams testifies that he refused to give defendant credit for the wood, but said he would take it, and sell it for him if he should have opportunity to do so. Looschen’s testimony on that subject was in part as follows:

> “I went in to see Mr. Alexander Williams, and I asked him, ‘What did you ship back the veneer for? I told your father about it,—that I couldn’t use that in my business, and I bought it for-mahogany, and it isn’t mahogany.’ He says, ‘That don’t make any difference. We sold you that veneer, and we can’t take it back.’ And I says, ‘It isn’t worth five cents to me. I was deceived in the matter.’ And he says, We-have used your-note for discount.’ I said, T don’t care anything for that. You can allow me for it later *755on. for I am not in any hurry about that.’ Then he says, ‘All right, Looschen, let her come back.’ And I sent it back, and they have had it ever since.” .

If Looschen’s testimony was true, then the jury were authorized to And a resale of the California redwood to the plaintiff, followed by its actual delivery to and acceptance by it. Whether it was true, was a question of fact for the jury.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.