130 F. 696 | 2d Cir. | 1904
The defendant Withers made a bid offering to enter into a contract to furnish certain stationery sup
The United States attorney quite properly decided that recovery ■could not be had for the penalty named ($3,000), but only for the actual damages which had been sustained through. defendants’ default. The price paid the public printer was $1,027.20, the articles, •at prices named in the bid would have cost $516.67, and the government sought to recover as actual damages $510.53. It appeared on the trial that the pads bought from the public printer were of slightly better quality than those which Withers had offered to furnish, and that $85 fairly represented such difference in quality, whereupon the United States attorney apparently conceded that the ■plaintiff’s claim should be reduced by that sum. It further appeared that the market price of pads such as Withers offered to furnish was 14 cents in July and August. What the market price was subsequently does not appear.
The plaintiff relies on a section of the United States Revised Statutes which reads as follows:
“Sec. 3709. All purchases and contracts for supplies or services, in any of the departments of the government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service. When immediate delivery or performance is required by the public exigency, the articles or services required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals.” [U. S. Comp. St. 1901, p. 2484.]
Incidentally it may be noted that articles of stationery are not usually bought “between individuals” of the public printer, and whether the price of articles sold by him compare favorably or unfavorably with their prices in the open market, where individuals
It is contended that plaintiff was at any rate entitled to recover nominal damages, and that the court erred in directing a verdict for defendants. But it is well settled that there should be no reversal when a nonsuit has been directed in a case where plaintiff could recover nominal damages only, unless some permanent right is affected, or some error of the court has crept in by which the jury has rendered an erroneous verdict, or, possibly, the recovery of costs has been affected.. Ellsler v. Brooks, 54 N. Y. Super. Ct. 73; Funk v. Evening Post Pub. Co., 76 Hun, 497, 27 N. Y. Supp. 1080; Brantingham v. Fay, 1 Johns. Cas. 264. In the case at bar no permanent right is affected, the jury has not been misled, no costs would have followed the recovery of nominal damages, and none were entered against the United States in the judgment under review.
The judgment is affirmed.