Johnson v. Krom — 37 N.Y. St. Rep. 873

Majority

p. 873

Blake & Johnson, Resp’ts, v. Stephen R. Krom, App’lt.^[1]

(Court of Appeals,

Filed June 2, 1891.)

Headnote

Appeal—Court op appeals.

In an action upon certain promissory notes defendant interposed two counterclaims, one for $82.42 for per centages on manufacture of parts of machines, the other for $1,471.17 for violation by plaintiffs of their agreement not to manufacture certain machines from defendant's patterns, except for him. Held, that even if plaintiffs made another machine, not ordered by him, what he lost thereby was merely the profit, about $328.33, and there being no interest to add to unliquidated damages, his claim would not amount to $500, and he could not upon this appeal claim that his demand was larger than that stated in the pleading.

Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff for §1,532.71, entered upon a verdict directed by the court.

Herbert T. Ketcham, for app’lt; M. H. Cardozo, for resp’ts.

The action was brought upon certain promissory notes of the defendant, and the indebtedness thus evidenced is admitted. But the defendant interposed two counterclaims; one for the sum of $82.42 for percentages or commissions upon the manufacture of parts of machines, and the other for $1,471.17 ■damages for the violation by plaintiffs of their agreement not to

p. 874

manufacture certain machines from defendant’s patterns, except for him or upon his order. The evidence is very slight upon which to charge the plaintiffs with any liability or with a violation of their agreement. Whether the trial court was right in refusing to submit the case to the jury and in directing the verdict for the plaintiffs is a question, however, which we shall not review. The amount in controversy, arising out of these counterclaims, falls below the sum of $500. This appears from the evidence, and we have the right to refer to it, as well as the pleadings, in order to ascertain that fact. Assuming that the plaintiffs made another machine, which was not ordered by defendant and did not pass through his hands, what he lost thereby was the profits, which would have been his upon a sale by him. That profit, according to his proofs, would have been $323.33, and that represents the extent of the damage recoverable. He cannot claim to include the royalties, or their incidental advantages, accruing to him from a sale of his patented machine.

Such a claim would remain his as against the parties who purchased from the manufacturer. All that plaintiffs could have damaged him by selling the machine directly to others, upon the evidence, would be in the amount of the profit which he could have derived from the sale of the machine had it passed through his hands. The amount of damages thus established under this counterclaim added to the previous counterclaim would not amount to $500; even if to the first counterclaim there be added interest upon it, which is not demanded. The second counterclaim being for unliquidated damages, would not carry interest upon a recovery. As the defendant claimed, under his first counterclaim, a" liability to him from the plaintiffs, fixed at a certain sum under the contract, and did not move to amend, or to increase the claim, he cannot be heard upon this appeal to claim that his demand was larger than stated in the pleading.

The appeal should be dismissed, with costs to the respondent.

All concur.