The burden of proof was upon the plaintiff and was not sustained. It appears that the whole agreement between *737the parties was not evidenced by the writing. There was a payment of two dollars and one of ten dollars on an unexplained account. If it was an account of rental as indicated on Exhibit 6., there was no default shown. If it was on account of purchase price there must have been a modification of the agreement suggested by Exhibit 6, and as it does not appear in what respect there was a modification it cannot be said that the plaintiff was entitled to the property.
In addition it may be said that there was no evidence of a refusal to deliver. Judgment affirmed, with costs.
Present: Truax, P. J., Scott and Dugro, JJ.
Judgment affirmed, with costs.