This is an action to recover for goods sold and delivered, and was tried as such on the plaintiff’s complaint and evidence. The promise of payment to which the plaintiff testified, was made, as he shows, in that connection.
The defendants, however, by answer and proof, insisted that the wines alleged to have been sold were delivered to them for reclistillation, on shares, and that the profits subsequently accruing upon their sale were to be divided.
The learned justice charged, on this defense, that if the wines were delivered upon this understanding they were at the risk of the plaintiff and he could not recover their value in this action.
He also charged that if there was not an absolute sale of the wines, the defendants were entitled to a verdict.
The question which the juror asked namely: “ While we might believe it was a copartnership arrangement in regard to the sale, and not an absolute sale, yet, if the defendants received a certain amount from the insurance company for this loss, is the plaintiff entitled to the amount that they received,” and the answer given by the court as follows: “ If they promised, as he says they did, that if they should receive the claim from the insurance company, they would pay Hollister, he is entitled to that,” was inconsistent with the views previously expressed and changed the entire cause of action. This could not be done. The court of last resort has so declared. (Arnold v. Angell, 62 N. Y., 510.)
The promise of the defendants, it may be further said, was not predicated of any partnership result or joint profit or interest, but of the alleged sale and founded npon the receipts of indemnity for the loss of the goods by fire, from the insurance company, and which wotdd put the defendants in funds to pay for them. Whether under a proper form of action the plaintiff might not recover in whole or in part, it is not necessary to declare.
*448He has put himself on the record, as an absolute vendor, and must stand or fall in this action on that basis. I think the judgment should be reversed.
Daniels, J., concurred.