
    Cruver Manufacturing Company, Appellant, v. William Spooner, Respondent.
    Third Department,
    November 15, 1911.
    Pleading — amendment at trial changing defense — sale — breach of warranty—damages.
    Where in an action for goods sold and delivered, the defendant pleads a general denial, the court has no power at trial to permit him to amend his answer so as to allege “ as a separate defense and as a counterclaim'’ a breach of warranty that the goods were to be in all respects equal to sample.
    The only damages a vendee can recover for breach of warranty of goods sold by sample are the difference between the contract price of the goods and their value if they had fulfilled the warranty.
    Evidence of the retail value of the goods as sold is insufficient to establish the damages sustained by breach of the warranty.
    Appeal by the plaintiff, the Graver Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of March, 1911, upon the verdict'of a jury, and also from an order entered in said clerk’s office on the 28th day of March, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      W. P. Butler, for the appellant.
    
      Nash Rockwood [L. B. McKelvey of counsel], for the respondent.
   Sewell, J.:

The action was brought to recover the value of certain goods, wares and merchandise sold and delivered to the defendant, and for which it was alleged he promised to pay the sum of $120. The answer consisted of a general denial: When the case came to trial upon these issues the defendant moved for permission to serve an amended answer and set up a counterclaim. The motion was granted, and the plaintiff duly excepted.

The amended answer allowed substantially changed the defense by alleging “as a separate defense and as a counterclaim ” that the goods mentioned in the complaint were boug by sample with warranty that those to be furnished should be in all respects equal to. the sample and should be handpainted; that the defendant, relying upon the agreement and warranty. purchased the goods and paid the plaintiff $40 on the purchase price thereof; that immediately after the receipt of the goods the defendant notified the plaintiff that they did not conform to the sample or to the warranty made by the plaintiff, and were not of the style and character ordered; that he offered to return the same but the plaintiff refused to receive them or to return the $40 paid by the defendant. The defendant also alleged that the goods were worth $80 less than they would have, been worth if they had been equal to the sample exhibited to the defendant, and asked that said sum “ shall be deducted from the amount, if any, which may be proved against him on the trial of this action.” It is too plain for argument that the amendment substantially changed the defense, and was, therefore,, not such an amendment as the court had power to grant upon' the trial.

We also think that the court erred in admitting testimony as to the retail value of the 2, 000 mirrors which were the subject of the sale, and that there was no evidence from which the jury could determine the damages sustained by the defendant in consequence of the breach of the contract by the plaintiff. The only damage which a vendee can recover in a case like' this is the difference between the contract price and the value of the property if it had been according to contract. There is nothing in the record to establish a basis for the recovery of the damages to which, under this rule,' the defendant might have been entitled. The only evidence offered or given upon the subject of damages was that the retail value of the mirrors “is a nickel -apiece.”

We are of the opinion that a new trial must be granted on the ground of the error of the trial court in regard to the question of damages, and in allowing the amendment of the answer.

All concurred.

Judgment and order reversed and new trial granted, with ts to appellant to abide event.  