110 N.Y.S. 680 | N.Y. App. Div. | 1908
This is an action by a vendee of merchandise to recover damages of his vendor for its failure to deliver woolen goods known as “ tans ” and “ castors ” in accordance with the terms of two orders
The defendant gave evidence tending to show that the market price of the goods during the period during which delivery was to be made was much lower than that shown by the evidence introduced in behalf of plaintiff. Upon the record and charge it is impossible to determine accurately the basis upon which the jury computed the plaintiff’s damages. It appearing that the goods had a market price, it was error to receive evidence of the specific sales, and it was also error to submit that evidence to the jury. Moreover^ it appears that the time of delivery, pursuant to the three orders placed by the plaintiff, was different from the time of delivery under the contracts between plaintiff and defendant. Under the contracts the defendant was at liberty to deliver the goods at any time between the first day of April and the first day of October. The court also erred in permitting the jury to consider the testimony of the three specific sales made in January and February as bearing upon the market price during the period of delivery specified in the contract, which did not Commence until the first day of April thereafter.
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham,'McLaughlin, Clarke and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant' to abide event.