It appears, from the evidence of James E. Smith, of the firm of Wm. H. Smith & Sons, that twenty-four kegs of the tobacco had, in March or April, previous to the arrival of the tobacco in New .York, been sold by Smith & Sons, for the plaintiffs, at sixty-two and a half cents per pound, to Connolly & Co. a New York firm, and that Connolly & Co. after the arrival of the tobacco in New York, were notified of its arrival, and of its damaged condition, and were told they need not take the twenty-four kegs in its damaged condition, but that, nevertheless, Connolly & Co. did take the twenty-four kegs, at the contract price ; and the presumption is that they have paid the plaintiffs, or their agents, Smith & Sons, for the twenty-four kegs, at the contract price. If this evidence is true, and there' is nothing in the case to contradict or in any way to impeach it, and it would appear to be a conceded fact, then the plaintiffs have received, or are entitled to receive, from Connolly & Co. *459the full contract price of the twenty-four kegs ; and if so, it is difficult to see how, as to the twenty-four kegs, the damage to the tobacco was, or has been, any damage to the plaintiffs.
[New York General Term, April 1, 1867.I think the judgment should be reversed and a new trial ordered, unless the plaintiffs consent to deduct from the judgment the difference as to the twenty-four kegs, between sixty-two and a half cents and a dollar per pound.
The net weight of the twenty-four kegs is stated by a witness (James R. Smith) to be 5816J pounds.
Judgment affirmed.
Leonard, James C, Smith and Ingraham, Justices.]