#### John H. Ehrehart, Respondent, *v.*Palmer M. Wood, Appellant.

*Shidence as to a settlement and compromise of a claim for merchandise sold; as to a breach of the contract and the dcmages occasioned thereby, and as to the time of an indorsement on a bill rendered, considered and the verdict of the jury sustained.*

Appeal by tbe defendant, Palmer M. Wood, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Oneida on tbe 28th day of January, 1892, after a trial at tbe Oneida Circuit before tbe court and a jury, also from an order denying tbe defendant’s motion for a new trial, entered in said clerk’s office on tbe 1st day of February, 1'892.

Exbibit 18, referred to in tbe opinion, was a “bill for January, 1888,” for coal, in favor of Palmer M. Wood, tbe defendant, and against tbe Herkimer Paper Company.

*Steele c&*Prescott, for tbe appellant.

*S. M. Linclsley,*for tbe respondent.

Parker, J.:

Tbis action is brought to recover a balance due for coal sold and delivered by tbe plaintiff to tbe defendant. Tbe answer sets up two defenses: *First.*That the parties had settled and agreed upon tbe balance, and that tbe same bad been paid before tbe commencement of tbis action. *Second.*That tbe plaintiff bad broken tbe contract under which tbe coal was purchased, and tbe defendant bad suffered damages thereby to an amount exceeding the plaintiff’s claim.

These questions of fact were submitted to the jury, and it found a verdict for tbe plaintiff for tbe full amount claimed by him. From tbe judgment entered upon such verdict tbis appeal is brought.

After a careful examination of tbe evidence we are not disposed *610to disturb tills verdict. Tbe questions were very fully and fairly submitted to the jury, and there is not such a preponderance of evidence in favor of the defendant as warrants us in setting the verdict aside on that account. *(Baird*v. *Mayor, etc., of City of N. Y.,*96 N. Y. 567*; Roosa*v. *Smith, 17*Hun, 138 ; *Fleming*v. *Smith,*44 Barb. 554; *King*v. *N. Y., L. E. & W. R. R. Co.,*50 N. Y. St. Repr. 103*; Beckwith*v. *N. Y. C. R. R. Co.,*64 Barb. 300, 308.)

Nor do we find any error in the reception or rejection of evidence that warrants the granting of a new trial. The ruling most urgently complained of is the exclusion of the evidence offered by the witness Churchill as to whether the entry he ir ade on Exhibit 13 w^as made at or before he settled with the defendant. The argument is that if it appeared by his evidence that such entry was on the exhibit when the plaintiff and defendant had their interview, it would discredit the plaintiff’s version of that transaction. So it would, if it had appeared that the witness’ settlement with defendant was before the date of the interview between plaintiff and defendant. But it nowhere appears that the witness and Wood had settled before the time when the plaintiff and Wood had such interview, and, therefore, the evidence offered appeared to be utterly immaterial. It was not equivalent to an offer to show that the indorsement was on the bill at the time of the interview between the plaintiff and the defend-, ant. Hence, there was no error in rejecting it.

None of the other rulings complained of appear to be erroneous. We conclude, therefore, that the judgment and order appealed from should be affirmed, with costs.

MeewiN, J., concurred; HaediN, P. J"., not voting.

Judgment and order affirmed, with costs.