The plaintiff sued for goods sold and delivered, alleging the' sale and delivery of thirty-nine barrels of a certain manufactured product known as casein.' The defendant, denying the contract set forth in the complaint, alleged an agreement for sale by sample; that thirty-nine barrels were received; that they did not conform to the sample, and that they were for that reason rejected. A counterclaim was also pleaded for freight paid' on the barrels received. At an early stage of the trial the plaintiff conceded, and indeed the evidence clearly showed, that the sale had been by sample, and the only point litigated was:whether or not the merchandise delivered came up to the sample. The only evidence upon that point was that which was given by the defendant, and it was all to the effect that the casein in thirty-four out of the thirty-nine barrels fell below the sample and was practically worthless. The learned justice in the course of his charge instructed the jury as follows: “ The burden of proof, prdinarily, in a case for goods sold and delivered is upon the plaintiff; but, in an action of this character where the defense is that the goods are not up to sample, the burden shifts from the plaintiff to the defendant and it becomes the duty of the defendant to satisfy you, by a fair preponderance of the evidence, that the goods were not up to sample.” This was duly excepted to, as was the court’s refusal to charge that it was' the duty of the plaintiff to establish that the goods delivered by him were up to sample under which the sale was had, and the charge and refusal to charge are now called in question as reversible errors. The charge in the particular noted was obviously erroneous and cast upon the defendant a burden which it *347was not called upon to bear. Duryea, Watts & Co. v. Rayner, 20 Misc. 544; Rose v. Wells, 36 App. Div. 593. It is elementary that the plaintiff, in order to recover, must affirmatively establish the essential elements of his cause of action. One of the essential allegations of his complaint was that he had delivered the casein which had been the subject of sale. This allegation was put in issue by the general denial, as well as by the more specific separate defense which alleged the sale by sample. So soon as the fact was established, by concession or proof, that the sale had been by sample, the plaintiff could establish his allegation of delivery only by showing that the goods attempted to be delivered were the goods which had been the subject of the sale, i. e., the goods equal to the sample. Hence it became a part of plaintiff’s affirmative case to show that the goods were equal to sample, .and the burden of doing this never shifted from him to the defendant. The verdict was contrary to all the evidence in the case as to the quality of the goods attempted to be delivered and we cannot say that the jury were not influenced, to the defendant’s prejudice, by the erroneous charge. We think that the trial justice might well have dismissed the complaint, or, at least, have set the verdict aside as against the evidence. As has been said, the only issue litigated was whether or not the goods came up to sample, and all the evidence on this point was to the effect that they did not. It is no answer to say that the jury were not bound to believe the defendant’s witnesses, for, if their testimony should be entirely disregarded, the case would be left with a concession that the sale was made by sample and with no evidence that the plaintiff ever delivered or attempted to deliver the goods which.he sold, to wit: goods equal to the sample by which the sale was made.
The judgment must be reversed and a new trial granted with costs to appellant to abide the event.
Tbuax and Bischoee, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.