Majority
p. 280John Fischer and Louis Langenhagen, Pl’ffs and App’lts, v. John J. Reilly and James A. McElhinny, Def’ts and Resp’ts.[1] (New York Common Pleas, General Term, Filed February 4, 1889.)
Headnote
1. Contract—Of sale—Right to reject goods.The defendants ordered of the plaintiffs a suit of furniture to he made-in a particular way. Held, that they were under no obligation to accept a-suit of a different style or inferior make.
2. Same—Motion for new trial—Error in finding of jury—Power of
COURT TO MAKE ORDER CONDITIONAL UNLESS ERROR BE CORRECTED.
One of the items alleged in the complaint was admitted by the answer, but was lost sight of on the trial, and the jury found a verdict, for defendants generally. The plaintiffs made a motion for a new trial, one of the grounds for which was the error made by the jury in not finding for the plaintiffs at least for the amount admitted by the defendants to be due. •The trial judge, in order to correct that error, made an order granting the motion for a new tiial, unless the defendants should consent and stipulate-that the verdict should be amended so as to be entered in favor of plaintiff for the amount admitted to be due. Held, that the court had power to> make such an order upon the consent and stipulation of the defendants, and that it being in plaintiffs favor they had no cause for complaint.
p. 281
Appeal from a judgment of the general term of the city court affirming a judgment entered upon the verdict of a jury.
The action was brought to recover the value of goods alleged to have been sold and delivered by the plaintiffs to the defendants. The defendants, in their answer, admitted the sale and delivery to them of a portion of the goods to the value of twenty dollars, but that the balance of the claim was for a suit of furniture which plaintiffs had agreed to make for $137 like one which they had on hand. The suit, however, did not conform to the agreement, and defendants refused to accept it.
The trial judge, Ehrlich, J., in his charge to the_ jury, said “ There is but one question for you to determine in this case under the pleadings, as presented, and that is what was the contract or agreement entered into between the parties, at the time of the sale of the furniture. The defendants claim that the furniture was delivered ■ to them in accordance with a previous agreement, which has been sworn to by the defendant, in relation to the presentation of some other furniture, at the time the order was given. If you find that the furniture was not delivered in accordance with that agreement, the defendant had a right to reject it, and you will render your verdict for the defendant, if you find such to be the fact from the evidence adduced here.”
To which the plaintiffs excepted in these words: “ Plaintiffs except to that portion of the charge wherein the court" states, ‘ there is but one question for you to determine under the pleadings, as presented, and that is what was the contract or agreement entered into between the parties, at the time of the sale of this furniture. If you find that the furniture was not delivered in accordance with that agreement, the defendant had a right to reject it, and you will render a verdict for the defendant.’ ”
The jury found a verdict for the defendant. The court, the jury, and the counsel of both parties, overlooked the fact that defendants had admitted a portion óf plaintiff’s claim, to the amount of $20. After the trial, the learned justice who tried the case, discovered that a mistake had been made as to the $20 admitted to be due, and in order to correct that mistake, when the question came before him to decide the motion of the plaintiff for a new trial, he entered an order that “ the motion be granted, unless the defendants stipulate to change and amend the verdict rendered herein, within five days from date of entry of this order, so that it would appear to have been' rendered in favor of plaintiff, for twenty dollars and interest, and further, that if such stipulation be made, then said motion is hereby denied.”
p. 282
Upon the filing of said stipulation by the defendants, the court entered this final order and judgment, after reciting, that, as the plaintiffs had recovered a verdict for $21.35, which being less than fifty dollars, that they were therefore not entitled to costs, and that the defendants are entitled to costs.
“It is adjudged that the plaintiffs recover of the defendants $21.35, their damages so found, and that the defendants be allowed their costs of action, amounting to $68.36,. as taxed by the clerk, and that the defendants, after deducting said sum of $21.35 from said sum of $68.36, do-recover of the plaintiffs and have execution of the sum of $47.01, the residue of said costs.”
From this judgment plaintiff appealed to the general term of that court, which affirmed the judgment.
—It is manifest from the case that the undisputed item of twenty dollars was overlooked ón the trial by both parties, and for this the plaintiffs were as much in. fault as the court or the defendant. After the verdict had been rendered and the oversight was called to the attention-of the court, it promptly corrected the error, as it had the power to do. Burhans v. Tibbits, 7 How. Pr. R., 21; Van Schoening v. Buchanan, 14 Abb., 185 ; Clark v. Richards, 3 E. D. Smith, 89.
, The fact that this changed the general verdict for the defendant into a specific judgment in plaintiffs’ favor is to-the advantage of the latter, and they cannot complain of it, especially as we cannot see how the oversight of the court in respect to this item in any way influenced the jury on the other questions involved in the case, or that any error was committed by the court in its charge to the other property in controversy.
The judgment and order must, therefore, be affirmed,, with costs. _