#### William H. Plumb, Appellant, *v.*J. W. Hallauer and Sons Company, Respondent.

Third Department,

January 6, 1909.

Evidence — sale — proof of damage.

Where a seller suing to recover the contract price of apples sold by weight has testified positively to the weight of some of the apples shipped, he has made *prima facie*proof of some damage, and should not be nonsuited merely because another person who was with the plaintiff at the place of shipment actually did the weighing, in the absence of proof that the plaintiff had no knowledge of the weights.

Appeal by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 20th day of April, 1908, upon a nonsuit granted by the court at the close of the plaintiff’s case, upon a trial at the Franklin Trial Term, and also from an order dismissing the complaint.

*John P. Kellas,*for the appellant.

*J. W. Barrett*and *Peter G. Smith,*for the respondent.

Chester, J.:

The complaint in form states but a single cause of action, but in fact two causes are alleged, one to recover a balance due on the contract price for apples sold and delivered by the plaintiff to the defendant, and the other for damages for the refusal of the defendant to receive and pay for other apples claimed to have been purchased by .the defendant from the plaintiff under such contract. No question was made as to the form of the complaint. :

On the trial the plaintiff’s proof tended to show that the defendant entered into a contract with him by which it agreed to purchase whatever apples he could load at various points in Northern New York and ship to it at Webster, N. Y., up to fifteen carloads and to pay therefor on delivery 70 cents per 100 pounds for mixed apples and 75 cents per 100 pounds for paring apples, less the freight thereon, and that'the plaintiff under such contract delivered to the defendant . eight carloads containing 289,540 pounds of mixed apples and *28511,150 pounds of paring apples amounting at such prices to $2,110.41, upon which the defendant paid $461.75 freight and paid the plaintiff the further sum of $1,480.03, leaving a balance due of $168.63, besides interest.

The plaintiff’s proof also tended to show that the plaintiff shipped four other carloads of apples to the defendant which it refused to receive and pay for, and offered to ship another carload which the defendant directed him not to ship, and that the plaintiff sold these five carloads at the best price he could obtain for them, but for much less than the defendant agreed to pay. The court granted the nonsuit on the ground that there was no proof of damages.

If there was competent testimony as to the weights of the apples contained in the eight cars of apples which were delivered to the defendant a *prima facie*case was made out showing the balance above stated as being due the plaintiff from the defendant on account thereof.- The respondent calls attention to the fact that the plaintiff testified to the number of pounds of apples contained in two cars shipped from Bangor included in the eight cars above mentioned, and that afterwards it appeared that not he hut one Moore did the weighing at that place. But it appears that the plaintiff was at Bangor and loaded the apples and Moore testified that he weighed them accurately. He did not, however, state the number of pounds, but testified that he had the book in court in which he put down the weight correctly. The plaintiff testified positively as to the weights, and it is not to be presumed that he would have done so without having knowledge. The mere fact that another did the weighing under circumstances which afforded the plaintiff an opportunity to know what he was swearing to is not sufficient, in the absence of proof that he had no knowledge, to justify the court in ignoring his testimony. Ho motion was made to strike out the plaintiff’s evidence, and if it had been stricken out on the ground of want of knowledge Moore would have undoubtedly been recalled to give the actual weights as he had them recorded in the book which he had in court. There was some indirect proof as to the weights of the apples contained in the two cars in question found in the fact that the railroad company charged freight on practically the same weight which the plaintiff testified was contained in the cars. Ho question was made as to the sufficiency of the proof with *286respect to the weights of the other cars. We think, therefore, that the case was not one for a nonsuit, regardless of the question whether or not the plaintiff made adequate proof of damages as to the five cars which the defendant refused to receive. That question may not arise on a new trial and we need not consider it.

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

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.