
    ALBERT J. RISS, Respondent, v. DANIEL MESSMORE, Appellant.
    
      Breach of warranty, damages for.— Counter-claim in answer for purchase price of article warranted not allowed.
    
    The action was brought to recover damages for a breach of warranty of a lintel sold to plaintiff by the defendant. Because of a defect in the lintel, the walls of the building into which the same was placed fell. The referee found that plaintiff was entitled to recover the damages caused by the fall with interest. Held, that the referee did not err as to his finding of the damages, but erred in giving interest on the same.
    The referee also allowed plaintiff as damages, the rental value of the house for two months. Held, that there was no evidence to sustain this finding. Held also, that defendant was not entitled to recover the contract price of the lintel as a counter-claim, because he had not delivered the same as he had agreed, and because there was no evidence of the value of the same. Held also, that the judgment should be reversed, unless plaintiff stipulates to reduce the same by a deduction of $852,73, and in case of the reduction, judgment affirmed without the costs of appeal.
    Before Tbuax and Dugbo, JJ.
    
      Decided March 4, 1890.
    Appeal from a judgment entered on the report of a referee.
    The action was brought to recover damages for a breach of a warranty of a lintel sold to plaintiff by defendant. The defendant by counter-claim sought to recover the purchase price of the lintel.
    
      
      Moody B. Smith, attorney and of counsel, for appellant.
    
      Rollin E. Beers, attorney, and Charles S. Miller of counsel, for respondent.
   By the Court.—Truax, J.

We do not think that the referee erred in finding, as matter of fact, that the walls of the building into which the lintel was put fell because of a defect in the lintel, and that plaintiff was entitled to recover from the defendant the damages that were caused by the fall of the lintel. But we think that the referee erred in giving plaintiff interest on the damages that he sustained by reason of the breach of warranty. ' It was held by the Court of Appeals in White v. Miller, 78 N.Y. 393, that interest should not be allowed as damages for a breach of warranty in the sale of goods.

The referee also allowed plaintiff as damages the rental value of the house for two months. There is no evidence to sustain this finding in its entirety. The plaintiff’s only witness on this point testified ( fol. 87) “ if we had not let the house it could have been done two months later, the 1st of July.” This, at the most, would only warrant the referee in giving plaintiff the rental value of the house from the first of July and not from the first of June.

The referee did not err in refusing to allow defendant his counter-claim. He was not entitled to recover the contract price because he had not delivered the thing he agreed to deliver, and he was not entitled to recover its value because there is no evidence of its value.

Our attention has been called to but one alleged error relating to the evidence. One of plaintiff’s witnesses testified that he was on the ground after the front of the building had fallen and examined the “ lintel that we all supposed was the cause of its falling,” and defendant’s counsel moved to strike out the words “ that we all supposed was the cause of its falling,” This motion was denied and defendant excepted to the ruling of the referee. We do not think that the judgment should be reversed because of this ruling. A number of witnesses had testified that the lintel was the cause of the fall, and the witness was only referring to that fact. But if this phrase were out of the case, the testimony remaining in the case would sustain the finding of the referee on this point.

Judgment reversed unless the plaintiff stipulates to reduce the judgment by deducting there from eight hundred and fifty-two dollars seventy-three cents, in which event judgment is affirmed without the costs of this appeal.

Dugro, J., concurred.  