
    William H. Plumb, Appellant, v. Edwin A. Bridge and John W. Souter, Respondents.
    Third Department,
    January 4, 1911.
    Contract — sale — breach by vendor — recovery of earnest money — form of action —erroneous charge.
    On the breach of a contract to sell goods the vendee, who, having made part payment, buys in the goods through a third party at less than the contract price, is not required to bring an action to rescind the contract in order to recover the payment, but may sue under a-complaint, alleging the contract, the breach by the defendant and his failure to return the part payment.
    It is error to charge that plaintiff cannot recover the payment and to characterize his case as a six-cent law suit.
    Cochkane and Houghton, JJ., dissented.
    Appeal by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendants, entered in the office of. the clerk of the county of Franklin on the 27th day of April, 1910,- upon the verdict of a jury, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new'trial made upon the minutes.
    
      Kellas & Genaway [J. P. Kellas of counsel], for the appellant.
    
      Fitch & Kiley [Edward A. Kiley of counsel], for the respondents,
   Kellogg, J.:

Upon a sale of goods to be delivered plaintiff paid to the defendants $100 in part payment and as earnest money. He alleges that the defendants failed to perform the contract upon their part, and he refused to receive the goods on account of their inferior condition.' The defendants thereupon sold them and they were bought-in by another for the benefit of the plaintiff. He, therefore, secured the goods at a less price than he agreed .to pay for them. It is" evident he sustained no damages unless he was entitled to recover back the $100. Perhaps technically he was entitled to a six cents’ verdict if the defendants had violated their contract. He was not required to bring an action in form to rescind the contract. He did not desire to rescind but sought to enforce it, and upon an allegation of the defendants’ default he sought to recover the $100, and other alleged damages. It is evident, therefore, that the action was brought to recover the $100, and the court charged that he was not entitled to that, and of course the jury beat him. If the jury had found six cents damages he was thoroughly beaten for bringing a six-cent case in the Supreme Court and would have been charged with the costs. If only entitled to six cents damages in a case of this kind it would be immaterial whether the jury found with him or against him so far as the right to appeal is concerned. The verdict, therefore, was not materially wrong if the plaintiff was only entitled to six cents damages. It was a fair question upon the evidence whether the plaintiff was not entitled to recover $100 on account of the defendants’ breach of the contract, but the plaintiff was laughed out of court by having his case characterized by the presiding judge as a six-cent law suit. It cannot be said that if the case had been properly submitted to the jury the plaintiff would not have recovered. I am satisfied that the erroneous charge prevented the plaintiff from having the fair and impartial consideration of his case which it was entitled to receive. In my.judgment the judgment should be reversed and a new trial granted, with costs to appellant to abide event.

All concurred, except Cochrane and Houghton, J J., dissenting.

Judgment and order reversed and new trial granted; with costs to appellant to abide event.  