
    William H. Schmohl, Appellant, v. Vincent Buscemi and Angelo Di Benedetto, Respondents.
    First Department,
    June 18, 1909.
    Contract — account stated — counterclaim for damages — evidence — charge to jury.
    Evidence in an action to recover a balance on account of goods furnished, to which a counterclaim for damages caused by a delivery of inferior material for certain “ Rockland ” lime ordered was interposed, examined and held, that the finding of the jury in determining the amount of the counterclaim was arbitrary and the verdict was against the weight of evidence.
    The defendants also pleaded an assignment of a claim as an accord and satisfaction, while the plaintiff claimed that it was given merely as security. Held, under the facts shown, that the court should have instructed the jury that, if they found that the assignment -was taken only as security, it would still be the duty of the plaintiff to apply upon the judgment recovered in the case at bar any amount collected on the claim. .
    Appeal by the plaintiff, William II. Schmohl, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 29th day of October,. 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Frank Barker, for the appellant.
    
      Charles I. Hoffman [Henry A. Friedman with him on the brief], for the respondents.
   Laughlin, J.:

The defendants were copartners engaged in conducting the business of plastering, and the plaintiff was a dealer in materials and supplies used by masons and plasterers. The action isxbrought for a balance of account alleged to have been due and owing from the defendants to the plaintiff on the 13th day of February, 1903, for plasterers’ building material, amounting to the sum of $1,875.26. The defendants interposed an answer, in effect admitting the account as alleged, but alleging, among other things, that under orders, for “ Rockland ” lime the plaintiff delivered to them other lime, and that they were unable to discover that the material delivered was not the material which they ordered, until after it had been made into plaster and used when portions of it fell, resulting in damages to the defendants in the sum of $2,400.

"Upon the trial the plaintiff gave evidence tending to show, in accordance with the allegations of his complaint, that on the 13th day of February, 1903, the defendants were indebted to him in the amount claimed for a balance of account. The defendants gave evidence tending to show that plaster on different jobs, in the making of which “ Rockland ” lime purchased by them from the plaintiff was used, fell or proved defective, rendering it necessary to do the work over again and for which, according to the testimony of the defendant Buscemi, they expended the sum of $2,694.25 for labor and used material' of the value of $509.05. Thus the claim of the plaintiff, with interest, aggregated at the time of the trial $2,516.90, and the only evidence with respect to the precise amount of the damages sustained by the defendants on account, of the matters set forth in their counterclaim, showed the same to be the sum of $3,203.30, and this it is to be borne in mind was not the opinion of the witness, but was an actual calculation of a precise amount. While it is within the province of the jury to estimate the damages,, and they were not bound by the testimony of one of the defendants, yét in the case at bar it. would seem that the action bf the jury in reducing the defendants’ claim'on. their counterclaim, to just ten dollars more than the plaintiff’s claim', and awarding a'verdict for the balance, if that be the theory upon which the verdict was rendered, was arbitrary. '

The defendants also pleaded an accord and satisfaction. This defense was based upon an assignment of a claim which they had against the firm of Weil & Mayer, upon which they had brought an action which was then pending. The claim was for $1,600, and the assignment was made on the 22d day of October, 1902. The plaintiff claims that it was taken as collateral security for the balance of account on which this action is based, which was the same on that day as on the date already stated, and the defendants claim that it was taken in full satisfaction thereof. It is in writing and unconditional, and it recites that it was given in consideration of the delivery by the plaintiff to the defendants of satisfactions of certain mechanics’ liens which he had filed against them.

' It appears that at the time of receiving this assignment the plaintiff had filed four mechanics’ liens against the defendants for the balance of account which is sought to be recovered here, and'that on that day he executed and delivered to the defendants satisfaction pieces of those liens. The court submitted to the jury the question as to whether the assignment wras taken in satisfaction of the claims, or only as security, and it cannot be accurately determined from the verdict as rendered which way the jury decided the question. If the jury believed the defendants’ contention on that point, it would • seem that there could be no counterclaim, for according to their testimony that was intended to .constitute a settlement of all matters of difference between the parties, and we think the trial justice intended to so instruct the jury, but this point was not made very clear. The defendants were permitted to show over objection and exception duly taken by plaintiff on the express statement of .their counsel that the evidence bore upon the issue as to whether .the assignment was taken in satisfaction or only as security, that thereafter the plaintiff continued to deal with the defendants separately after the dissolution of their flrmj and this, although it appeared that the capacity in which the plaintiff theretofore dealt with them was as president of a corporation. This evidence had no material bearing upon the issues presented, and while it might not, standing alone, require a reversal, it is not to be entirely overlooked. Ordinarily, of course, it is not error for the court to refuse to instruct the jury what will he the consequences of their verdict, but on these facts we are of opinion that the court should have instructed the jury, as requested by counsel for the plaintiff, that even though the jury should find that the assignment was only taken as security and thus find for the plaintiff on that issue, the plaintiff would still be obliged to credit upon the judgment recovered in this action any amount which he realized on the claim assigned. The request was not drafted with technical accuracy, for it should have stated that it would be the duty of the plaintiff to apply it on the judgment, if ■ not then satisfied, as far as necessary, and account to defendants for the balance or for all if not received until after satisfaction of the j udgment. However, by this request the attention of the court was drawn to the proposition and the case is so involved that we think the _ jury should have been informed that a verdict for the plaintiff would not enable him to have a double recovery on the claim, which was the purpose of the request made.

The judgment and order, therefore, should be reversed, and a new trial granted, with costs to appellant to abide the event.

McLaughlin, Houghton and Soott, JJ., concurred; Ingraham, J., concurred on the first ground considered in the opinion of Mr. Justice Laughlin.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  