Coble v. Potter ( 1913 )

Robson, J.:

Plaintiff’s verdict was for the full amount of the unpaid balance of the purchase price of twelve cows sold and delivered by him to the defendant. The sale and delivery of these cows was admitted by defendant; but in his answer he alleged two counterclaims for damages for the breach of an alleged warranty of the condition of the cows, the purchase price of which plaintiff sought to recover in this action, and a like breach of warranty of the condition of another lot of cows previously sold and delivered to defendant by plaintiff, the purchase price of which had been previously paid to plaintiff. Plaintiff denied that any such warranty was made or existed. We think that a fair question of fact as to whether the warranties alleged by defendant to have been made by plaintiff was presented on the evidence, and that the trial court properly submitted to the jury the determination of that issue. Evidence was received tending to show that the cows in question were actually of a value equal to or exceeding the price defendant agreed to pay for them. The court properly instructed the jury among other things in effect that, if defendant had failed to prove the warranties, then plaintiff was entitled to recover the full amount of the purchase price then unpaid. But the court further, erroneously as we think, charged the jury in effect that, if they should find that the cows bought by defendant of plaintiff were actually worth in the market the amount which defendant agreed to pay for them, then, even though the warranties claimed had been made and broken by plaintiff, the defendant had suffered no damage, and no finding in his favor upon either of his counterclaims could be had. As thus instructed, the jury found for plaintiff the ñill amount of the unpaid purchase price. Whether the jury found that defendant had not established the warranties and their breach, or, on the other hand, that he had failed to prove that he was damaged by plaintiff’s breach of the warranties because the cows delivered were worth the price for which they had been sold does not appear. On this record we cannot determine that the verdict was not based upon a finding due solely to the erroneous instruction of the court to which attention has been called. Though defendant did not except to the charge as made, yet he did move to Get aside the verdict and for a new trial upon the ground, among others, that the verdict was contrary to law. That motion having been denied, we may still review on this appeal this question of law even in the absence of an exception. (Lesin v. Shapiro, 147 App. Div. 100; Standard Oil Co. v. Amazon Insurance Co., 79 N. Y. 506; Griebel v. Rochester Printing Co., 8 App. Div. 450.)

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.

All concurred, except McLennan, P. J., who dissented, in an opinion.