Babbett v. . Young

*242 Gray, C. The motion for a nonsuit was properly overruled. The allegation in the complaint was that the machines were delivered by the plaintiff and received by the defendant in pursuance of a contract. The evidence so nearly supported the allegation as to show that all the machines were delivered, and although not within the specified time, yet that they were received and accepted by the defendant. If the proofs did not in substance sustain the allegation, the variance was so slight as to forbid even a pretence that it had misled the defendant, and hence was properly disregarded. (Lounsbury v. Purdy, 18 N. Y., 515; The Bank of Havana v. Magee, 20 id., 355, 359.) The agreement on the part of the defendant was to pay the plaintiff whatever rise there might be in any stock or material, after the contract was made, necessary to build the machines. The proof is that a rise occurred, and that after it occurred the defendant made purchases of articles not on hand, and such as were necessary to enable him to complete his work. There was no sufficient evidence to justify a jury in finding that in making the purchases the defendant lacked the diligence which a man of ordinary diligence would have exercised in making purchases on his own account, and hence the request to submit that question to the jury was properly refused. The evidence that the machines were such as the contract required, and that they were delivered to and accepted by the defendant, was sufficient uncontradicted to entitle the plaintiff to recover, and hence no error was committed in refusing to submit that question to the jury. The proposition that the contract was made by the defendant in the exclusive interest of Barber, Sheldon & Co., as their agent, and that it was known to the plaintiff when he signed it, was, as I understand the offer, proposed to be! established not by any writing to which the plaintiff was a party, but by parol. Such being the case, the offer was properly overruled. (Auburn Bank v. Leonard, 40 Barb., 119, 136, affirmed in the Court of Appeals, MS. opinion by Lott, J.) I The remaining and more doubtful question, because the jus] tice of the ruling excepted to is not so apparent, is upon thl *243 right of the plaintiff to recover the increase of government duties, imposed by the act of congress of the 30th June, 1864, upon the machines in question after the contract for their delivery was entered into; the duties not having been first paid by the plaintiff. By a prior act a duty of three per cent on such articles as those embraced in this contract, which by the act of June 30th, 1864, was increased to five per cent, and to protect any party who might theretofore have contracted to deliver them, authority was given to add to price thereof “so much money ” as would be equivalent to the increase subsequently imposed, “and to sue for and recover the same accordingly.” It would not be difficult to assign reasons why such recovery ought not to be had until the plaintiff had paid the increase and thus suffered loss by its imposition, to be recompensed by the amount paid and interest. Whatever reasons might be urged would be such as might have been urged against the passage of the act rather than in favor of the ruling asked for by the defendant. Ho question is raised as to the right of congress to pass the act. The right to add the amount of the increased duties to the contract price of the articles to be delivered is expressly given by the act, as well as the right to sue for and recover the same “accordingly,” or in other equivalent words, as if the sum equivalent to the increased duties had by the terms of the agreement been included in the price to be paid. Such, in my judgment, is the only interpretation of which this provision of the act is susceptible, and hence the judgment appealed from should be affirmed. All concur. Judgment affirmed.