
    Fourth Department,
    January, 1920.
    McConnell Coal Company, Appellant, v. J. Bert Ross, Respondent.
    
      Contract—action for breach of contract to deliver coal—evidence — damages — 1 charge.
    
    Appeal from a judgment of the Supreme Court, entered in Erie county clerk’s office, May 5,1919, upon the verdict of a jury in favor of the defendant for $16,314.67, damages and costs, and also from an order entered May 22, 1919, denying plaintiff’s motion for a new trial.
   Per Curiam:

An examination of this record discloses that there was great confusion upon the trial; in the figures of the amount of coal produced by the mines, in the amount purchased by the plaintiff from outside mines, in the time during which the plaintiff was bound to deliver under its contract, and the time during which it was excused from delivering because of embargoes, etc. In submitting the case to the jury the confusion in the evidence inadvertently crept into the charge, so that when the case reached the jury it was in such condition that the jury must have been confused and unable to clearly separate the different items and arrive at a verdict which represented a definite theory of the case and which would be based on definite figures. This is clearly illustrated by the figures given to the jury in the charge, wherein it was stated that the amount which the defendant was entitled to recover, according to the defendant’s figures, was $24,193.02. The verdict of the jury was for $16,193.02. It is apparent that the jury arbitrarily deducted the lump sum of $8,000 from the figures given by the court. We find no basis in the evidence justifying such a lump sum reduction. In view of the evidence in this case, it was error for the court to charge that if the plaintiff did not produce enough coal in its mines to fulfill its contracts, it was its duty to go out and purchase it. The judgment and order should he reversed and a new trial granted, with costs to appellant to abide the event. All concurred, except De Angelis, J., not voting. Judgment and order reversed and new trial granted, with costs to appellant to abide event.  