Kellogg, J.:
Upon a sale of goods to be delivered plaintiff paid to the defendants $100 in part payment and as earnest money. He alleges that the defendants failed to perform the contract upon their part, and he refused to receive the goods on account of their inferior condition.' The defendants thereupon sold them and they were bought-in by another for the benefit of the plaintiff. He, therefore, secured the goods at a less price than he agreed .to pay for them. It is" evident he sustained no damages unless he was entitled to recover back the $100. Perhaps technically he was entitled to a six cents’ verdict if the defendants had violated their contract. He was not required to bring an action in form to rescind the contract. He did not desire to rescind but sought to enforce it, and upon an *155allegation of the defendants’ default he sought to recover the $100, and other alleged damages. It is evident, therefore, that the action was brought to recover the $100, and the court charged that he was not entitled to that, and of course the jury beat him. If the jury had found six cents damages he was thoroughly beaten for bringing a six-cent case in the Supreme Court and would have been charged with the costs. If only entitled to six cents damages in a case of this kind it would be immaterial whether the jury found with him or against him so far as the right to appeal is concerned. The verdict, therefore, was not materially wrong if the plaintiff was only entitled to six cents damages. It was a fair question upon the evidence whether the plaintiff was not entitled to recover $100 on account of the defendants’ breach of the contract, but the plaintiff was laughed out of court by having his case characterized by the presiding judge as a six-cent law suit. It cannot be said that if the case had been properly submitted to the jury the plaintiff would not have recovered. I am satisfied that the erroneous charge prevented the plaintiff from having the fair and impartial consideration of his case which it was entitled to receive. In my.judgment the judgment should be reversed and a new trial granted, with costs to appellant to abide event.
All concurred, except Cochrane and Houghton, J J., dissenting.
Judgment and order reversed and new trial granted; with costs to appellant to abide event.