George W. Moore, Respondent, v. John J. Betz, Appellant

George W. Moore, Respondent, v. John J. Betz, Appellant. (Argued November 15, 1882; decided November 28, 1882.) This action was brought to recover the purchase-price of a quantity of ice alleged to have been sold and delivered by plaintiff’s assignor to defendants. The answer admitted the purchase, but alleged that the vendor falsely represented that there was one thousand five hundred and sixty-six tons of the ice when there was in fact only fifteen hundred. It also averred that defendant offered to pay for the. fifteen hundred tons if a check he had given for the purchase-money, payment of which he had stopped, was returned. On the trial plaintiff withdrew all claim for more than fifteen hundred tons, and delivered up the check to be canceled, and the court thereupon ordered judgment for plaintiff. Defendant offered to prove that the ice was removed and sold by plaintiff. This was rejected. Held no error, as it was not within the issue, and that the case was properly disposed of. Gha/des J. Maehin for appellant. Samuel W. Weiss for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for affirmance.. All concur. Judgment affirmed.