Stevens v. Sonto

Nehrbas, J. Plaintiff sues for goods sold and delivered. The defendants, admit the sale and delivery of the goods, except four mahogany and two walnut cabinets, which they claimed were not according to contract, and inferior in workmanship. The jury rendered the following verdict; “We find for the plaintiff the sum of $417 and interest, plaintiff to retain three of the mahogany cabinets.” Defendants duly excepted to the form of the verdict both before and after the same was recorded, and they claim that the judgment entered thereon should therefore be reversed. The form in which the jury rendered their verdict is certainly improper. Still it should, nevertheless, not be. set aside, unless the defendants were injured thereby. Were they so prejudiced? On examining the bill of particulars of plaintiff, we find that each of the mahogany cabinets is valued at $30, making $90 for the three. The plaintiff’s entire claim is $507. Deducting the three cabinets therefrom, 485 leaves $417, the amount of the verdict. To validate the verdict, all after the statement of the amount must be regarded as surplusage; thus leaving it in favor of plaintiff for $417 and interest. The jury evidently intended that plaintiff might retain three of the four cabinets, as not properly manufactured, requiring the defendants to pay for all the other goods sued for. By considering the superfluous words as surplusage, all the goods in suit, including these three cabinets, are naturally the property of the defendants; the jury having found that they were worth in toto but $417. Now, it seems to us that if any one ought to complain of this construction it is the plaintiff, and not the defendants; for the former is the loser of three cabinets which the latter obtain gratis. It is therefore difficult to comprehend in what manner the defendants are prejudiced by the verdict as rendered. They are entitled to all of the goods for which this action is brought, and have had $90 deducted from the agreed price therefor. Nothing further could be gained by a new trial, where the entire amount in dispute is but $160, of which $90 has been allowed. The evidence was properly submitted to the jury. The testimony was conflicting, and the verdict quite favorable to the defendants. As to the counter-claim as offered to be proven upon the trial, we think its exclusion was right. Loss of profits should be specially pleaded, and cannot be proven under a general allegation of damages. The ordinary rule governs in such case; that is, the difference between the market price and contract price. Parsons v. Sutton, 66 N. Y. 92. There is no proof that the cabinets could not be procured in the market, or that others might not have been manufactured in their stead, to All the order which defendants had. Under the circumstances, the ruling of the trial judge was correct. No exception was taken to the charge of the trial judge, and none of the exceptions otherwise taken are meritorious. It fpllows that the judgment and order appealed from should be affirmed, with costs. So ordered. McGown, J., concurred.