Marx

Action for the price and value of personal property sold and delivered. Judgment for plaintiff. Order denying a new trial. From the judgment and order defendant appeals.

The unverified complaint alleges the sale and delivery by plaintiff’s assignor to defendant, a corporation, of a car of oranges and pomelos at a guaranteed price of $2.25 per box, nonpayment of which is averred. The answer comprises a general denial and a special defense that the goods were shipped to defendant to be sold on commission, and alleges a full compliance upon defendant’s part and a tender to plaintiff’s assignor of the proceeds, less certain expenses. And in the answer it is averred that the goods were received and shipped pursuant to a letter alleged to have been sent by defendant and deposited in the United States mail on December 9, 1904, before the shipment of said ear. This letter was set out in the answer in haec verba, and, omitting date and address, is as follows:

Upon the trial the court admitted testimony upon the part of plaintiff that no letter as set out in the answer, had ever been received; and the evidence being' satisfactory that the shipment was under an express contract to pay the…