Action fori $150, the agreed purchase price tif a set of German books published by plaintiff.
The contract is in the form of an order, dated October 29, 1913. It is absolute in form, and calls for twenty volumes at seven dollars and fifty cents each. The proof of delivery by plaintiff is very defective, but it makes out a prima facie case, and there is no evidence to the contrary. The shipments to defendant were made at various times, and defendant testified that he opened only one parcel, took out a book which was mildewed, returned it to the parcel and reshipped it to plaintiff’s binders in Boston who had forwarded them to him. The later parcel or parcels defendant did not even open, but he testified that he delivered them to the express company to return to the Boston binders. Plaintiff’s treasurer testified that he investigated and, so far as he could learn, the books had never been received back.
Defendant was permitted to testify, over objection and exception, that when he signed the contract plaintiff’s agent said “ it is not binding if you don’t want the books; after you inspect them you can send them back, you will not commit yourself in any way.” Because of the admission of this evidence a new trial must be granted. Corse v. Peck, 102 N. Y. 513; Thomas v. Scutt, 127 id. 133, 138.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
Lehman and Whitaker, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.