
    Sarah E. Bishop, Respondent, v. The Autographic Register Company of New York, Appellant.
    
      When the question as to which of two companies made a contract is one for the jury — action for-a refusal to accept goods — measure of damages.
    
    Under wliat circumstances, the question as to which of two companies, in both of which the individual conducting ■ the negotiations was interested, entered ■ into a contract with a third party should be submitted to the jury, considered.
    Where there is no proof that a party contracting to make certain goods has actually manufactured them and had them ready for delivery, she is not .entitled, in an action to recover for a breach of the contract, to recover their price, but merely her loss of profits resulting from the failure of the vendee to take the goods.
    
      Appeal by the defendant, The Autographic Register Company of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 10th day of February, 1896, upon the verdict of a jury, and also from an order bearing date the 10th day of February, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Appleton D. Palmer, for the appellant.
    
      Isaac N. Miller, for the respondent.
   Williams, J.:

The action was brought to recover damages for breach of contract. The main question arising upon this appeal is whether the contract was made by the defendant, or' another company known as the National Autographic Register Company. The defendant moved, at the close of plaintiff’s evidence, to dismiss the complaint on the ground that the evidence showed that the contract was made with the Hational Company. The court denied that motion and the defendant excepted. Ho motion to dismiss was made at the close of all the evidence. In its charge the court submitted to the jury the question whether one Shoup, in making the contract, represented the defendant, and upon the request of the defendant instructed the jury that the plaintiff could not recover unless Shoup, in making the contract, did represent the defendant. There was no exception to the charge. A motion was made for a new trial upon all the grounds mentioned in section 999 of the Code of Civil Procedure. Upon this condition of the record the question raised here is whether there was evidence upon which the jury was authorized to find that Shoup, in making the contract, represented the defendant. The defendant was a Hew York corporation, organized in or prior to 1887, and held and owned the patents. The same persons who were interested in the defendant organized the Hational Company. The same person was president of both companies.

Shoup was general manager of the defendant, and'as such commenced the negotiations with the plaintiff prior to the organization of the Hational Company. A large number of letters were written back and forth in the course of. the negotiations. Sometimes the letterheads of one company were used and sometimes the letterheads of the other company: Shoup was prominently connected' with the whole negotiations, and had several interviews with the plaintiff. The contract was finally completed after the organization of the Hational Company, and Shoup. testified that he informed the plaintiff, before the contract was made, of the change of companies, but the plaintiff denied this, and testified that she never knew of any such change, but supposed she was dealing with the same company all along. We think under the evidence it was a question for the jury whether, in making the contract, Shoup represented the defendant, and. that the finding of the jury that he so represented the defendant was supported by the evidence. The defendant, at the close of the evidence, made no claim that, this question was not for the jury, or that it was improperly. submitted to them. ' We think the finding as to this fact by the jury should not be disturbed on this appeal. ■

The remaining questions relate to the amount of damages awarded by the jury. One item allowed. was the cost, of making the machine to. be used by the plaintiff in complying with the contract. The plaintiff claimed that as a part of the contract the defendant agreed to pay for this machine. The defendant denied this. At first it was said that the machine the plaintiff had in use could be changed so as to answer the purpose, and in a. letter written by Shoup, as general manager of the defendant, July 30, 1887, he said: “ Any necessary expense for fitting your machine for this purpose will be paid by this company, etc., etc.” The plaintiff, in giving the language used in completing the contract, October 16, 1887, testified : I think I told him (Shoup) that I could not have the old machine fixed over, but it necessitated my having a new machine built complete. * * * He said, go on and have your machine built,” etc., etc. We think, upon this evidence, the jury was warranted in finding an agreement to pay the expenses of making a new machine. .

The court charged the jury that they might allow this item if they .found the contract was made, and there was no exception taken by the defendant to such instruction. The other item of damages allowed was the value of. 868 ribbons, at. 50 cents, $434. The contract was for 1,000 ribbons, but only 132 were taken and paid for. The plaintiff was allowed to recover the full purchase price of the remaining 868 ribbons, instead of the loss of profits thereon,' which was concededly only $295.43. The court in the charge stated that the loss of profits might be recovered, but incorrectly gave the agreed amount thereof. ISTo exception was taken to this 'instruction, and the judge’s attention was not called to the mistake. There seems to have been no evidence that the plaintiff, as a matter of fact, made the 868 ribbons and had them ready for delivery. -She merely stated what the profits would have been,.and the loss of profits was all she was entitled to recover for damages under the evidence. We think, on the motion for a new trial, this error should have been corrected, and that provision for correcting it should be made by us on this appeal.

The other questions raised by the appellant require no special consideration here. They are not such in any event as to call for a reversal of the judgment or order..

The judgment should be reversed and a new trial ordered, with' costs of appeal to defendant to abide event unless the plaintiff stipulates to reduce the judgment by deducting $138,57, with interest .from October 16, 1887, in which case the judgment, as so modified, should he affirmed, with costs of this appeal to the respondent.

Van Brunt, P. J., Rumsey, Ingraham and Parker, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event unless plaintiff stipulates to reduce judgment by deducting $138.57, with interest from October 16, 1887, in which •case judgment, as modified, affirmed^ with costs of appeal to the respondent.  