I. Although the machine was ordered, in the first instance by Hall & Green, when Van Wyck took Green’s place in the concern he called upon the plaintiffs, informed them of the fact, and then, by the assent of all the parties concerned, he was substituted as one of the contracting parties in the place of Green, This happened when the plaintiffs were making the patterns for it, and before they commenced any work on the machine itself. They then proceeded with the construction of the machine; with the understanding that Van Wyck was to be responsible. The plaintiffs received subsequent directions from him, and none from Green. When the machine was finished, Van Wyck called in relation to its delivery, and promised -that .$1000 should be paid on the day of the delivery. In short, the effect of all this was that the contract between the plaintiffs and Hall and Green was rescinded ; and a new contract was made between the plaintiffs and Hall and Van Wyck. Van Wyck was clearly liable.
II. Was this contract rescinded. by the plaintiffs taking possession of the machine, with the assent of Van Wyck ? If, as Judge Wright declared in his opinion, delivered in the Court of Appeals, in relation to the former trial, there was *640not a particle of evidence, at the second trial, tending to show that the machine was taken hy the plaintiffs on the order of the defendant, to enable them to sell it, and apply the proceeds to the payment of the debts which the defendant had incurred for it, the judge erred in submitting the point to the'jury. I have not had an opportunity of examining the evidence on the former trial; but it appears to me there was sufficient evidence- on this point, at the second trial, to go to the jury. First. Schwartz testifies .that .Van Wyck told him that Wood, the owner of the premises occupied by the concern, claimed the machine under a lien, and that the plaintiffs had better take it away, “ else it would be sold.” Van Wyck told him to sell it. This is not sufficient to exonerate the defendant from liability for a deficiency at the sale, if there should be one. But the defendant testifies that when he spoke to Schwartz about taking the machine away, he told him he must not trouble him (Van Wyck) any further about it. Schwartz said he would be satisfied to do so ; that is, not to trouble him again. Van Wyck further, testifies that he never directed Schwartz to sell it. On the other hand, Sloan testifies that he heard no such conversation as that to which Van Wyck testifies; “he said he wished he had never had any thing to do with the machine ; it had ruined him.” Sloan swears that Van Wyck never requested the plaintiffs not to trouble him again. Schwartz corroborated Sloan. Here there was plainly a conflict of evidence on this essential point—the release of the defendant’s liability by the re-delivery of the machine to the plaintiffs. Was this re-delivery for the purpose of satisfying the debt due to the plaintiffs, or was it merely for the purpose of selling -it on account, and applying the proceeds to its payment ? This was fairly put to the jury.
The judgment should be affirmed, with .costs,
Ingraham, J. concurred.