16 Barb. 386 | N.Y. Sup. Ct. | 1853
The plaintiffs seek to recover a stipulated monthly compensation for furnishing, or being ready to furnish, certain steam power to the defendants, from the first of May to the first of November, 1851. The defendants offered to prove that accidents fatal to human life had resulted from the use of the machinery which supplied the power, both before they had commenced, and after they had ceased, using it. The proposed evidence to that effect was excluded by the learned judge who tried the cause. The defendants’ object was to show a satisfactory reason for abandoning the use of the power, before the time specified in their contract had expired. But they had not alleged that, by way of defense, in their answer; and if they had done so, there is nothing to show that the alleged accidents happened from any cause existing at the time when the machinery was in operation for them. If the accidents had resulted from any previous defect in the machinery, or from the habitual carelessness or mismanagement of the person who had charge of it, at the time when it was operating for the defendants, they should have proved, or offered to prove, those facts, to show the applicability of evidence which was otherwise, and; from any thing that appeared, irrelevant. The evidence was, under the circumstances, properly excluded.
The defendants also offered to prove that they had made contracts with various persons to. sell them saws which might be manufactured by them under their contract, but" which they had been unable to fulfill by reason of the failure of the plaintiffs to •perform their engagements, whereby the defendants had sustained damages; but the learned judge also decided that the
The defendants do not set up in their answer, as an absolute defense, or at all, that their obligation to pay the monthly installments claimed in this suit, was dependent upon the entire
Barculo, Brown and S. B. Strong, Justices.]
The only defense set up by the defendants in their answer is, that by reason of the non-performance of the plaintiff’s engagement in various particulars they have sustained damages to a large amount which they seek to recoup. As to these, all the admissible evidence offered by them was received; and the question was fully and fairly submitted to the jury. The question as to the dependence or independence of the covenants had no bearing upon the issues raised by the defendants, and actually tried; and if the judge was incorrect, on this point, in what he said to the jury, the error could in no manner have prejudiced the defendants, and should be disregarded in their motion for a new trial. (Shorter v. The People, 2 Comst. 193. The People v. Lohman, 2 Barb. S. C. R. 216.)
There is another reason why the mistake, if any, did not prejudice the defendants. The jury have found, in effect, that the plaintiffs did fully perform their engagements; unless there was, which is not pretended, some breach for which the consequent damages were merely nominal.
The jury would however, I think, have been warranted by the evidence in making some deduction from the plaintiffs’ demand. But the question was fairly submitted to them, and there was not such a preponderance in favor of thé defendants, on the question of recoupment, as to authorize me to disturb the verdict.
The motion for a new trial must be denied, with costs.