Hopcraft v. Lachman — 22 N.Y.S. 1093

Majority

p. 1093

HOPCRAFT v. LACHMAN et al.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

1. Appeal — Review—Variance between Testimony and Correspondence.

In an action on an oral contract for the manufacture toy plaintiff for defendant of certain articles, the fact that there is a variance between some expressions contained in the correspondence between the parties and the version of plaintiff’s witnesses as to the terms of the oral contract will not warrant the setting aside, on appeal, of a verdict in plaintiff’s favor, when the jury heard the witnesses testify and the correspondence read, and had their attention called to the contradiction.

3. Trial—Instructions—Repetition.

Where the court has clearly covered a point in its original charge, a party must take the effect on the jury of a direct refusal to repeat the charge, if he makes a request on the same point.

Appeal from circuit court, New York county.

Action by Alfred Hopcraft against Henry Lachman and another for breach of an oral contract by which plaintiff was to manufacture 500 ornamental signs for defendants at $4.50 apiece. From a judgment entered on a verdict in plaintiff’s favor for $1,000, and from an order denying defendants’ motion for a new trial, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

H. Frank, for appellant.

Edward B. Lafetra, (P. Carpenter, of counsel,) for respondent.

This action was brought to recover damages for the defendants’ breach of a contract according to which the plaintiff was to manufacture 500 ornamental signs, and the defendants were to pay him $4.50 each for them. The main question presented upon this appeal is whether the evidence was sufficient to justify the jury in finding a verdict in favor of the plaintiff. It must be conceded that, upon the oral testimony given upon the trial, a case upon the part of the plaintiff was made out. But it is claimed that certain correspondence between the plaintiff and the defendants was so far at variance with, and in contradiction of, the testimony of the plaintiff’s witnesses, that it showed that such testimony was unreliable, untrustworthy, and insufficient to justify the jury in basing a verdict upon it. It is to be observed that the plaintiff, in respect to the material parts of the contract in question, was unable to testify, in consequence of the death of one of the members of defendants’ firm, with whom such contract was made;, consequently, the letters in question were not relied upon as in contradiction of the testimony of the plaintiff himself, but of witnesses who testified as to conversations had between the plaintiff and the deceased partner in their presence. It seems to be true that there are contradictions between some of the expressions contained in these letters and the version of the transaction as given by the witnesses upon the part of the plaintiff; but we do not think that these contradictions are of such a character as to call upon us for a reversal of the verdict of the jury. The jury heard the witnesses testify, heard the correspondence read, and had their attention called to the contradictions; and, notwithstanding, found a verdict in favor of the plaintiff. We find no sufficient reason suggested upon the part of the appellant for disturbing that verdict. It is not necessary, in the consideration of this appeal, to rehearse in detail the testimony and the letters. The principal controversy between the parties related to the question as to who was to approve of the plans of the work proposed to be done; it being claimed upon the part of the plaintiff that such approval was to be made, and was made, by Samuel Lachman, the deceased partner, leaving-only a few immaterial parts thereof to be approved by his son Albert, and the contention of the defendants being that the whole plan of the work was to be approved by the son Albert. This issue was distinctly submitted to the jury, and their attention called to the testimony, and to the letters which had been offered in evidence; and the question submitted was whether the contract was such as claimed by the plaintiff, or as claimed by the defendants, and they were instructed by the court that, if the contract was as claimed by the plaintiff, the plaintiff was entitled to a verdict; but if, on the other hand, the contract was as claimed by the defendants, the plaintiff was not entitled to recover; and upon this issue, plainly presented, the jury found a verdict in favor of the plaintiff.

Various exceptions to the charge are called to our attention and urged as matter of error upon this appeal. It will be found, however, upon an examination of the case, that the court charged

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all that the defendants were entitled to; and, where the court has covered a point in its original charge, it is not required to repeat the same, and it is not error to refuse so to charge. If a party is not satisfied with a point clearly and squarely covered by the charge, he must take the effect upon the jury of a direct refusal to repeat the charge if he makes a request. The requests in regard to the right of the jury to reject any and all evidence as to conversations between Samuel Lachman and the witnesses was entirely covered by the statement of the court that he left it to the jury to judge of the value of the testimony and its probative force, even if the request had not been previously covered by the language of the court in its charge. The claim that the court charged that the decorations were one of the immaterial parts of the work is not well taken, because the court did not so charge. What the court did say was that such was the testimony offered upon the part of the plaintiff, and did not charge it as a fact. The objections taken to the admission and exclusion of testimony are not of sufficient importance to need special comment.

The judgment should be affirmed, with costs. All concur.