Goetze v. Dunphy — 19 N.Y. St. Rep. 714

Majority

p. 714

Herman Goetze et al., Resp’ts, v. John Dunphy, App’lt.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

New trial—When granted.

Where it clearly appears that the verdict in an action has been rendered in direct opposition to the evidence and a correct charge as to the law governing the case, a new trial must be granted

p. 715

Appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial.

Hobbs & Gifford, for app’lt; Treadwell Cleveland, for resp’ts.

The defendants entered into three contracts in April and May, 1884, for the purchase from the plaintiff of three different lots of wet salted calve skins. The calve skins contracted to be sold in this manner afterwards in part arrived and were unladen at a wharf in Hoboken, on' the harbor of New York. The defendants refused to accept or receive the skins, and they were afterwards sold under the authority of the plaintiffs, and the verdict has been recovered for the difference between the prices agreed to be paid and the proceeds .of the sale.

These skins were to be shipped by the plaintiffs, who were engaged in business at Hamburg, in Germany, and delivered on their arrival in New York. Each of the contracts of sale contained the statement that the skins were guaranteed not to lose over six per cent from their invoice weight. By the evidence of John Andreson, who was the broker by whom the contracts of sale were negotiated, the fact was proved that the skins did lose in weight more than this percentage. He stated that some of them had lost one or two' per cent, more than six per cent, and some had lost more. And there was no' contradiction whatever as to this fact in any of the evidence taken upon the trial. The fact that the sldns had lost more than six per cent from their invoice weight was conclusively proved therefore upon the trial.

And as to this fact the defendant’s counsel asked the court to charge that if the shrinkage below the invoice weight was greater at the time of delivery than the limits allowed by the several contracts respectively, the defendant had the right to reject such skins and the plaintiffs could not recover under such contracts. The court responded, “Yes, that is substantially so; that if the shrinkage below the invoice was greater at the time of the delivery than the limits allowed by the several contracts respectively, the defendant had the right to reject.” Under this evidence and the .direction given by the court to the jury, their verdict should have been for the defendant. They must have misunderstood the direction which the court gave to return the verdict which they did.

The judgment and order should therefore be reversed and a new trial directed, with costs to the defendant to abide the event of the action.

Van Brunt, Ch. J., and Bartlett J., concur.