¶1As the verdict was directed we can consider only the uncontradicted facts, which are as follows: That the David Cohen Silk Company had, prior to April 14, 1913, agreed to purchase 197 pieces of velvet from the defendant for $3,548.02; that on April 16th the plaintiff delivered to defendant the following papers :
¶2(1) A letter on the letter head of David Cohen Silk Company and signed by it, dated April 15th, addressed to defendant, reading:
“Dear Sir: Kindly deliver to Max M. Horowitz, No. 98 Greene street, city, 197 pieces of black velvet as per your bills of April 8th and 9th, 1913, and oblige. Yours truly.”
¶3(2) A statement showing an account between the Cohen Silk Company and defendant as follows:
Statement.
Telephone 8428 Spring. • New York, April 14, 1913.
M. B. Edmund David, City.
To David Cohen Silk Company, Dr.
Silk and Velvets.
Terms 7%. 656 Broadway.
April 8. To merchandise...................................... 3,081 01
April 9. “ “ .........'............................. 734 06
3,815 07
7% Discount................................................. 267 05
3,548 02
A/c ......................................................... 500
3,048 02
¶4*1002(3) A check dated April 16th on the People’s Bank, drawn by plaintiff to the order of David Cohen Silk Company, for $3,048.02, indorsed by the David Cohen Silk Company to the order of defendant.
¶5Shortly after the delivery of these papers, defendant delivered to plaintiff 156 pieces, being apparently the goods called for in the bill of April 8th, worth $3,081.01.
¶6This action is brought for the goods represented by the bill of April 9th, worth $734.06.
¶7It appeared on the trial that the latter goods had, subsequent to the visit of plaintiff, been delivered by the defendant to the David Cohen Silk Company. The only theory on which the judgment can be sustained is that the order for the delivery of the goods or the transaction as a whole constituted an assignment to plaintiff of the right and title of the .David Cohen Silk Company in and to the goods, and that defendant, having on the faith thereof, accepted from plaintiff his check, that is, having permitted him to change his position, was bound, by way of estoppel, to treat him as the assignee, and the account presented by him as correct, and therefore owed him the goods involved in the suit. The letter of April 15th, however, is clearly merely an order to deliver goods, and no more indicates an assignment than does the ordinary order delivered by any purchaser to any truckman or messenger. The check given by plaintiff to defendant was not, at the time, plaintiff’s check, and certainly was not any indication to defendant that plaintiff was tiren parting with anything on the strength of defendant’s acceptance or approval of the account presented; for, although the check was originally made by plaintiff, it had been made by him to David Cohen Silk Company, and had been by that company already indorsed to the defendant himself.
¶8The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.