
    Grant Wright, Respondent, v. Clendenin Eckert, Appellant.
    Second Department,
    November 16, 1906.
    Trial »—action on contract — defendant cannot change theory of défensé upon appeal. . "
    When-ah actipn brought by a sculptor to recover for work, labor .and services under an alleged contract to make three busts for the defendant at agreed prices, has been tried on the defendant’s theory that he did not order two of •the busts,'-and that issue has been presented to the jury without objection, the. defendant cannot for the first time on appeal claim that the contract, if'any, for the two busts-was that they were to be duplicates of the first bust ordered • and not to be of an enlarged size as made by the sculptor,
    Appeal by the 'defendant, Olendenin Eckert, from a judgment, of dhe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of January, 1906, upon' the verdict of a jury, and also , from'an order bearing date the 12th day of January,, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      William B. Ellison [Duncan A. MacIntyre with him on the brief], for the appellant.
    
      Gilbert Ray Hawes, for the respondent.
   Woodward, J.:

The plaintiff’s assignor, Frederick E. Triebel, is a sculptor, and the evidence in this case warranted the jury in finding that in May, 1903, Triebel entered into a contract with the defendant for a bronze portrait, bust of. the latter’s father; that the terms of the contract were-that the work was tobe executed for $600, upon condition that the defendant would procure contracts for other busts among his friends, although his regular price for -such work .was $2,000; that Triebel modeled a bust in day, which was approved by the defendant; that this bust became- damaged by frost and Triebel then made a new. model which was accepted by the defendant; that at a- luncheon- given by the defendant to plaintiff’s assignor an order was. given, for .two copies of the bust,, upon the same terms as -the original; that- the defendant has accepted and paid for one of these busts the sum of $600, refusing to accept and pay for the other two at $2,000 each, although it was conceded that he liad not procured any orders for similar work among his friends. At the close of the evidence there. was no motion to dismiss the complaint, and" the case was sent to the jury upon a charge to which neither party offered any objections, and the jury found in favor' of the plaintiff for the full amount of his claim. The defendant appeals to this court.

Upon this appeal the defendant urges as his principal point that the contract for the additional busts was made at a time when the original clay model was under consideration; that the contract, if any, referred to duplicates of this original bust of life. size, -while that which was subsequently made and accepted by the defendant was of heroic size. This point does not appear to have been made upon the trial, nor is it suggested in the pleadings, and the charge of the court clearly pointed out the issue as it was presented by the evidence and no one objected to this view of the case, and it is very late to urge the point now, conceding that it might have have had merit if brought forward in time.

Our attention is called to a line' of cases holding that where the trial court has made a charge presenting an entirely wrong theory to the jury the appellant is entitled to a reversal in the Appellate 'Division, even though no exception was taken', but these cases have no relation to the facts as presented in this case. The theory of the court in its charge is entirely consistent with the theory of the evidence, with the theory on which the case was tried, and there would be little 'hope of terminatingt controversies if a newly-developed theory, not presented upon the trial by the'evidence or the pleadings, could be injected upon appeal. We think it is safe to say that no appellate court has ever sanctioned' sue! a doctrine.

The case was tried upon the distinct theory that there was no contract between Triebel and the defendant; upon the theory that the defendant had merely expressed a desire to have two copies of the bust for his two sons, without entering into a contract for the same,‘and this was the issue presented to the jury. They have accepted the plaintiffs version of the conversation, which was concededly held at a luncheon where only Triebel and’ the defendant were present, and the effort of the appellant to shift the issue upon appeal cannot prevail without doing violence to the rules of sound jurisprudence.

The judgment and order appealed from should be affirmed, with costs. '

Present—> Hirschberg, P. J., Woodward, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  