Deacon v. I. W. & C. Horn Co. ( 1915 )

LEHMAN, J.

[1] The plaintiff sued for the sum of $195, the agreed price of certain marble which was furnished to the defendant. The defendant set up a counterclaim for the sum of $200 for damages suffered by the failure of the plaintiff to furnish the stone at the agreed time. He presented evidence which, in my opinion, sufficiently shows that the marble was ordered from drawings, and. that the plaintiff knew the purpose for which it would be used, and that delay beyond the stipulated time would cause damage to the defendant. He further showed that he could not have bought the marble in the market without suffering further delay. Upon this proof the trial justice dismissed the complaint and gave the defendant judgment on his counterclaim for the amount of damages suffered by the delay.

[2] I think that the evidence is sufficient to sustain a judgment on-the counterclaim, but the defendant cannot retain the marble and receive damages for the delay without paying for the marble. The trial justice should therefore have given judgment for the amount demanded by the complaint, and deducted this amount from the judgment on the counterclaim, giving to the defendant an affirmative judgment for •only the difference, which amounts to $5.

Judgment is therefore modified by reducing it to the sum of $5 damages, with appropriate costs in the court below, and, as modified, affirmed, without costs to either party. All concur: