Opinion
March, 1899.
John Jay McKelvey, for appellant.
Allan Lee Smidt, for respondents.
Exceptions taken to questions calling for immaterial testimony may be disregarded in considering this appeal. The actual terms of this contract, for supply of materials, existing between vendee and a third person, do not affect the merits of this cause, until we arrive at consideration of defendant's counterclaim.
It is the knowledge of plaintiffs of the existence of such a contract with a stranger, and the disposition of the goods which defendant was to make after delivery to it by plaintiffs, that should have determined the court below in making its rulings. Such special knowledge was a feature that might indicate, to all the parties, the use to which defendant was to put the goods and became an element of the contract between plaintiffs and defendant, to be considered in establishing damages, if any, suffered by the vendee for the nondelivery, or late delivery, of the lumber in question.
We think that the defendant should have had opportunity to substantiate its alleged counterclaim, and this being withheld, by erroneous rulings of the trial court, a new trial must be ordered.
Judgment and order appealed from reversed and new trial ordered, with costs and disbursements to appellant to abide the event.
FITZSIMONS, Ch. J., concurs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.