On appeal from a judgment of the Supreme Court.
For the appellant, Earl A. Merrill.
For the respondent, Stickel & Stickel.
The opinion of the court was delivered by
DONGES, J. This appeal brings up a verdict for plaintiff and against defendant after trial at the Union Circuit.
The suit was brought to recover the purchase price of a backfiller. The machine was second-hand and was in an open lot at Manhasset, Long Island. The plaintiff and defendant executed a written contract for the sale of the machine, which was described in the paper as follows:
"1 Used Model 32 Parsons Backfiller, as is where is. Delivery to be made, F.O.B. shipping point at Manhasset, Long Island, N.Y. Ship to A.E. Storr. At . . . Route . . . Customer's Trailer."
In his answer, defendant denied that he entered into the contract and alleged that he entered into a "verbal agreement to enter into a contract of sale" subject to the condition that plaintiff should first demonstrate that the machine was in
good operating condition and that plaintiff had failed so to do. The defendant counter-claimed for expenses alleged to have been incurred by him in connection with the delivery and storage of the machine.
At the trial the execution of the contract by the defendant was proved. Defendant admitted signing the agreement. The defendant did not allege fraud in the execution of the agreement, but sought to establish that the agreement was not as contained in the written instrument, but that certain things were to be done, and if they were satisfactory, then the agreement was to be entered into. The trial judge declined to admit parol testimony to vary the written agreement, and at the conclusion of the case directed a verdict in favor of plaintiff.
These rulings are challenged by the defendant, whose grounds of appeal seek a reversal, because the trial court directed a verdict for plaintiff; second, because the trial judge refused defendant's motion for nonsuit at the close of plaintiff's case; and, third, because of rulings on evidence.
The motion to nonsuit was properly refused, because at the close of plaintiff's case there was no contradiction of any matter that would ...