We think the case should have been submitted-to the jury on the question, whether there was any agreement between the parties by which the appellants were to have the privilege of examining and returning, defective goods, from timé to time, as the articles sold were taken from the plaintiffs’ warehouse. The actual return of goods and the acceptance of the same by the respondents from time to time tended to sustain the claim1 made by the appellants that there was such an agreement," and was a corroborative circumstance which the jury were entitled to take into consideration.
The respondents seek to uphold the judgment on the ground that the appellants did not request to go to the jury upon any question of fact, but as the latter did not move for a dismissal of the complaint,. or ,do any other act from which a waiver of their right to go to the jury could be implied, them exception to the direction-in respondents’ favor is sufficient upon this appeal to raise the point whether there were any questions of fact requiring determination by the-jury. Vail v. Reynolds, 118 N. Y. 297, 301, and citations.
As there must be a new trial, we consider it proper to say that greater care should be shown in putting in the proofs.' Among other things, it is- impossible to- determine from the record what discounts the defendants were entitled to and on what basis they were estimated.
The judgment should, therefore, be reversed land a new trial ordered, with costs to the appellants to abide the event.
Beekmah, P. J., and Gildebsleeve, J., concur.
- Judgment reversed, and new trial ordered, with costs to appellants to abide event. . -