
    Chauncey Stevens, Resp’t, v. Baldomero Sonto et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed October 26, 1888.)
    
    1. Verdict—Error in—When merely formal is to be disregarded.
    This action was brought to recover for goods sold and delivered by the plaintiff to the defendants. The defendants admitted the sale and delivery of the goods except certain of them, which they claimed were not according to the contract, and inferior in workmanship The jury zendered a verdict in favor of the plaintiff for a sum ol money and directing him to retain certain ol the goods in question Feld, that the verdict was improper in form, but that the error being- formal and not material the verdict should be valida ed by regarding that part of it after the award of the sum of money as surplusage
    
      
      2, Pleadings — When specific allegations are necessary to admit PROOF OF DAMAGES.
    
      Held, that loss of profits should be specially pleaded as a counterclaim and could not be proven under a general allegation of damages.
    3. Contract—Breach of—Measure of damages. «
    
      Held, that the measure of damages in case of a failure to comply with contract provisions relative to the kind and quality of goods was the difference between the contract-price and the market-price.
    Appeal from judgment entered upon a verdict and from an order denying motion for a new trial.
    
      Andrew Shiland, Jr., for app’lts; C. H. Machin, for resp’t.
   Nehrbas, J.

Plaintiff sues for goods sold and delivered. The defendants admit the sale and delivery of the goods, except four mahogany and two walnut cabinets, which they claimed were not according to contract and inferior in workmanship. The jury rendered the following verdict: We find for the plaintiff the sum of $417 and interest, plaintiff to retain three of the mahogany cabinets.” Defendants duly excepted to the form of the verdict both before and after the same was recorded, and they claim that the judgment entered thereon should, therefore, be reversed.

The form in which the jury rendered their verdict is certainly improper. Still it should, nevertheless, not be set aside, unless the defendants were injured thereby. Were they so prejudiced ? On examining the bill of particulars of plaintiff, we find that each of the mahogany cabinets are valued at $30, making $90 for the three. The plaintiff’s entire claim is $507. Deducting the three cabinets therefrom leaves $417, the amount of the verdict. To validate the verdict, all after the statement of the amount, must be regarded as surplusage, thus leaving it in favor of plaintiff for $417 and interest. The jury evidently intended that plaintiff might retain three of the four cabinets, as not properly manufactured, requiring the defendants to pay for all the other goods sued for. By considering the superfluous words as surplusage, all the goods in suit, including these three cabinets, are naturally the property of the defendants, the jury having found that they were worth, in toto,'but $417. Now it seems to us that if any one ought-to complain of this construction, it is the plaintiff and not the defendants. For the former is the loser of three cabinets which the latter obtain gratis. It is, therefore, difficult to comprehend in what manner the defendants are prejudiced by the verdict as .rendered. They are entitled to all of the goods lor which this action is brought, and have Had $90 deducted from the agreed price therefor. Nothing further could be gamed by a new trial, where the entire amount in dispute is but $160, of which $90 has been allowed The evidence was properly submitted to the jury. The testimony was conflicting and the verdict quite favorable to the defendants.

As to the counter-claim as offered to be proven upon the trial, we think its exclusion was right. Loss of profits should be specially pleaded, and cannot be proven under a general allegation of damages. The ordinary rule governs in such case, that is, the difference between the market price and contract price. Parsons v. Sutton, 66 N. Y., 92.

There is no proof that the cabinets could not be procured in the market, or that others might not have been manufactured in their stead, to fill the order which defendants had. Under the circumstances, the ruling of the trial judge was correct.

¡No exception was taken to the charge of the trial judge, and none of the exceptions otherwise taken are meritorious.

It follows that the judgment and order appealed from should be affirmed, with costs.

So ordered.

¡EcGtoWN, J., concurs.  