
    Samuel Eiseman and Moses L. Eiseman, Respondents, v. Arnold B. Heine and Jacob Rohner, Appellants.
    
      Sales — evidence of marlcet value — sale ly sample — charge of the court as to the measure of damages.
    
    In an action brought to recover the damages resulting from the breach by the defendants of a contract to deliver goods ordered by the plaintiffs, there was no dispute but that the goods had not been delivered, nor but that the sale was made by sample. There was sufficient evidence of an absolute sale of a part of the goods, and the plaintiffs recovered. Upon the trial one of the plaintiffs was permitted to testify that he had visited certain establishments, and was allowed to prove what it would have cost him to procure the goods at their prices.
    
      
      Held, that while the evidence was not strictly competent evidence of value, the question asked was competent,with a view to showing the effort made by the plaintiffs to replace the goods, and that, as other and competent testimony relative to the market value was given and accepted as correct by the jury, as appeared by the verdict, the defendants were not injured by the admission of the plaintiff’s testimony.
    The sample by which the goods were sold was shown to the witnesses on -both sides, and there was a dispute as to whether it- was a sample of perfect or imperfect goods.
    
      Held, that it was proper for the plaintiffs to ask a witness the market value of perfect goods of that quality.
    The court charged that the measure of damages upon a failure to deliver goods sold is the difference between the contract price and- the market value; the defendants’ counsel subsequently asked the court to charge that in estimating damages the plaintiffs could not, in any view of the case, recover more than ' the difference between the contract price per yard and “ the market value of imperfect goods such as the sample submitted to the witness.”
    
      Held, that the charge as made was proper, and that this request was properly - denied, as one of the questions in the case was whether the sample was ,a sample of perfect or of imperfect goods, and that consequently the counsel had no right, in the request which he made, to characterize the goods as imperfect.
    Appeal by the defendants, Arnold B. Heine and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Uew Y ark on the 11th day of May, 1895, upon the verdict of a jury, rendered after a trial at the Uew York Circuit, and also from, an order bearing date the Yth day of May, 1895, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    This action was brought to recover the sum of $1,500 as damages for the breach of a contract .to deliver goods ordered by-the plaintiffs. There was no dispute but that the goods had not been delivered, and that the time limited for such delivery had expired, but the answer denied that any contract. had been made. Upon this appeal it is insisted that the plaintiffs failed to establish a contract, and that the court erred in holding as matter of . law that they had established one, the appellants claiming that the most favorable view to be taken of the transaction was that it presented a question of fact as to whether there was or was not a contract between the parties. Whether such contentions are right or not we think depends upon the answer which is to be sought in the testimony as to whether a contract was made by plaintiffs with defendants' agent when the order was originally given, or whether the contract is to be spelled out from the correspondence between the principals after the agent of the defendants was on his way to Yokohama.
    Samuel Eiseman, one of the plaintiffs, testified that on the 5th day of September, 1892, he gave to defendants’ salesman an order for 500 pieces of changeable Kaiki silks, 300 pieces positively and 200 pieces conditionally, at thirty-two and a half cents per yard. A memorandum of the order given was made and retained by the defendants. This memorandum describes only 300 pieces, and no reference whatever is made therein to the additional 200 pieces mentioned by Mr. Eiseman in his testimony. On September fifteenth the defendants wrote to plaintiffs, saying: “ We beg to hand you herewith copy of your Import order on Japanese Silks with which you favored our Mr. Maass.” In that letter, as indicated, there was inclosed a copy of the order for the 300 pieces. Plaintiffs replied to this letter as follows: “'Your copy of order of 300 pcs. changeable Kaiki is not correct — the order was given for 500 pcs. •— the acct. for 200 pcs. to be given later. * * * Please send us the additional copy of order for 200 pcs.” The defendants thereupon wrote, saying:. “We have order from you for 300 pcs. Changeable Kaiki silks only. If the order given by you to our Mr. Maass was for 500 pcs. he must have omitted to mention that fact to us. We may say that the order as made out by you which we hold, only calls for 300 pcs. However, may this be as it will, we shall write by Wednesday’s mail to our Mr. Maass, who is now on his way to Yokahoma, and shall instruct him to give us his answer by cable, on receipt of which we shall communicate with you. In the meantime you will kindly acknowledge receipt of the copy of the 300 pcs. if you find the same correct in every particular except as to quantity.” To this letter the plaintiffs made no reply. About six weeks thereafter the defendants notified the plaintiffs that “ according to advice received from Japan and confirmed by our Mr. Maass, * * * it is impossible to produce changeable Kaiki silks in colors which would be satisfactory. * * * The striped Kaiki silks, which turn out beautifully, will be delivered.” To this the plaintiffs replied that their order was for changeable, and not for striped, Kaild silks, and that unless the order was filled they would buy them on the market for defendants’ account. In this last letter attention is called to the fact that at the time the order was given a sample piece was furnished the plaintiffs, and there is no serious dispute but that the sale was made on sample.
    
      Charles JE. Rushmore, for the appellants.
    
      Blumenstiel c& Kirsch, for the respondents.
   O’Brien, J.:

The plaintiff did not sue for 500, but for the value of 300 pieces, and it will be noticed that the confusion which was created by reason of the departure of Mr. Maass, the defendants’ agent, for Yokohama was in reference to the additional sale of 200 pieces, but there was no serious question but that the plaintiffs had ordered and the defendants had agreed to deliver 300 pieces. The situation, therefore, appears to us, as it undoubtedly did to the learned trial judge, that here was a contract for the purchase of 300 pieces about which there" was no dispute made at the time when the original order was given. . The appellants’' contention that if this view were taken, the • contract thus made being a verbal one, was within the Statute of Frauds, and, therefore, not binding, cannot be considered for the reason that the question, was not raised on the trial.

In addition to the evidence furnished by their letters that the defendants understood that they had contracted to deliver 300 pieces, we have their subsequent conduct in attempting to obtain the goods in the market, and the fact that their agent when examined upon the trial did not in any wise contradict plaintiffs’ testimony as to the making of the contract. If there had been a dispute about' whether this was an order for the absolute sale of 300 or of 500 pieces, then the appellants’ argument would be potent, because there was a question as to whether the minds of the parties met upon such a contract. As we have "shown, however, the plaintiffs did not claim that a contract was made for'the absolute sale of 500, but only of 300 pieces, and that the order for the 200 pieces, about which all the dispute arose, was a conditional one, and subject to future confirmation by the parties.

Another error assigned was hi permitting the plaintiff Samuel Eiseman, against objection, to testify that he had visited certain establishments and had ascertained the lowest prices at which they could sell to him changeable Kaiki silks, and that the lowest price was forty-five cents a yard. This information was obtained while the witness was out trying to buy the goods in the market, and though, strictly speaking, not competent evidence of value, the question was proper as showing the effort made by plaintiffs to replace the goods; and as a Mr. Rosenthal, one of the two from whom the witness obtained the information, himself testified to the market value, we do not think the testimony was harmful, particularly when we find that the jury did not adopt this figure, but seem to have taken the value as given by the defendants’ witnesses, of about thirty-seven cents. ■ The defendants not having been injured, therefore, we do not think that the error assigned affords ground for disturbing the verdict.

Another ruling on evidence claimed to be wrong was one permitting the plaintiffs to ask the market value of perfect changeable Kaiki silk of that quality. It will be remembered that at the time the order was given a sample of the goods to be delivered was left with plaintiffs, and that upon this the negotiations were based. This sample was exhibited to witnesses on both sides, and a question was presented as to. whether it was a sample of perfect or. of imperfect goods. The plaintiffs claimed the former, and the defendants as strenuously insisted on the latter. Contending, as the plaintiffs were, that it was a sample of perfect goods, it was proper to ask what the market value of goods of that quality was, just as the defendants’ witnesses were permitted to testify, as one of the latter did, that it was imperfect and full of streaks, and that goods of that character sold for a price even below the contract price. We do not think that the plaintiffs were bound by the defendants’ view as to the character of the goods, and as the sample was produced and a reference made to it in the question objected to, we think that the ruling was proper.

Upon the measure of damages, it was conceded that the true rule was the difference between the contract price and the market value, and the court clearly presented this to the jury. At the close of the charge, however, not satisfied therewith, the defendants’ counsel asked the court to charge “ that in estimating damages, the plaintiffs could not in any view of the case recover more than the. difference between 32% cents per yard, and the market value of .imperfect goods, such as the sample, submitted to the witness.” This was ,denied, and, we think, properly, for the reason that the counsel had no right to characterize the goods as imperfect, and to insist that the' court should adopt such characterization. If the word “imper-, feet ” had been omitted, the court would undoubtedly have charged, as it had already done, that the plaintiff could recover but the difference' between thirty-two and a half cents, which was the contract price, and the market price of goods, such as the sample submitted.

Our conclusion, therefore, is that no error was. committed which would justify a reversal, and that the judgment should lie affirmed, with costs.

Van Brunt, P.' J., Williams and Ingraham, JJ., concurred.

. -Judgment affirmed, with costs.  