I am unable to concur in the result at which my brother Ingalls has arrived. There is a question not discussed by him which seems to me to be decisive of this appeal. The complaint simply charges an indebtedness on a balance of account for goods sold and delivered. As to this the answer is substantially a general denial. Upon the trial the plaintiffs proved the manufacture and shipment of the caps, pursuant to the contract, and rested. The defendants were then permitted to prove, although there was no such defense set up in their answer (a fact to which I allude not as objectionable in itself, but as bearing upon the question hereinafter discussed), that the caps were imperfect. The specific defect testified to was that the crowns were not stitched to the caps, and that they fell off to the number of eight dozen or thereabouts. Tn consequence of this condition of things, the defendants returned the caps and refused to pay for them. Hence this action. When the defendants rested, the plaintiffs offered to disprove the statements made by the defendants’ witnesses with respect to the specific defects in the caps, but the testimony was excluded. This, *552I think, was error. I notice from certain observations in his charge to the jury that the learned judge placed his exclusion of such testimony upon the ground that the plaintiffs were bound before resting to exhaust their case. This was undoubtedly so. But with great respect, I think the rule was misapplied. The plaintiffs were not bound to forestall the defense. They were quite justified in resting upon proof of the manufacture .and delivery of the goods under their contract. It was proper also to show that the goods v/ere made in accordance with the contract. But it was quite time enough when the defendants sought to justify the return of the goods, by proof of specific defects, to rebut such proof by counter evidence on their part. The evidence excluded was rebutting. It is tine that • the plaintiffs probably knew, from the commission on file, what line of proof the defendants intended to offer. But that did not affect the question as to the proper order of proof. The latter depended upon the pleadings and not upon the extraneous incident of information as to the adversary’s hand. The effect of this ruling was, of course, disastrous to the plaintiffs. It entirely excluded their side of the case, and left the jury no alternative but to render a verdict for the defendants upon uncontradicted testimony.
I am, therefore, of opinion that this judgment should be reversed, and a new trial ordered, with costs to abide the event.
Davis, P. J.:I am of'the opinion that, under the established practice in trials of this kind, it was not necessary that the plaintiff, in making out his case, should go farther than to show generally the sale and delivery of the goods. He was not bound to anticipate particular defects and give evidence to show that they did not exist. If that were the rule as to one defect, it would be to all that possibly might be attempted to be shown, and such trials would become interminable by requiring the plaintiff to call numerous witnesses to repel the idea that am/y possible defect that defendant might attempt to prove actually existed. On the contrary, the plaintiff may rest on proof of sale and delivery, and i f the defendant gives evidence tending to show specific defects, he may call wetness in regard to such alleged *553defects, without, being subject to the rule enforced by the court in this case.
I concur with my brother Bakrett that the evidence offered should have been received, because it was in rebuttal.