Lowell

Plaintiff brings the action to recover for the breach of an alleged contract entered into between plaintiff and defendant, November 5, 1908, for the sale and purchase of redwood ties. It is alleged that, about March 1, 1909, plaintiff notified defendant of its readiness to receive the ties but defendant repudiated and refused to carry out said contract. Defendant denies that he entered into any contract with the plaintiff, as alleged or at all. As further answer: that the agreement sued upon is for goods and chattels of value exceeding two hundred dollars and is in violation of the statute of frauds, not having been in writing subscribed by defendant. As a third answer, defendant alleges that he “entered into certain negotiations with one Donald McDonald in reference to said redwood ties . . . and said McDonald thereupon wrote in his own handwriting” the following instrument:

The court made the following findings: That plaintiff and defendant entered into a contract, on November 5, 1908, by which “defendant agreed to sell to the plaintiff and the plaintiff agreed to buy from defendant 35,000 split redwood ties” upon the terms stated in the agreement set out in defendant’s answer,…

Dissenting. I cannot concur in the view of the court that the testimony of McDonald on recross-exam-' ination cured the error of the trial judge in sustaining the objection to the questions previously asked for the purpose of showing that in the course of the negotiation for the sale of the ties he was informed by Lowell that the sale was being made at a sacrifice for the sole purpose of raising funds essential to the securing of a valuable option. This ruling was sustained by the appellate court on the ground that “Lowell’s relations with Gray did not concern plaintiff and that defendant’s motive in selling the ties was not material.” It is here conceded that McDonald’s knowledge that Lowell was selling the ties at thirty-four cents cash on delivery in order to secure funds to meet a pressing obligation to Gray was competent and material evidence on the question of reasonable time for removing the ties—the controlling question in the case. If so, McDonald’s admission subsequently made that he did know that Lowell was making the sale in order to pay Gray a debt of some sort—only denying knowledge that it was to secure an option—can hardly be supposed to have caused the trial judge…