
    Lambert Becker et al., Resp’ts, v. Joseph P. Puels, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 26, 1890.)
    
    Contract—Trial.
    In an action for the price of goods sold, the answer set up that the goods did not. correspond to sample, and counterclaimed for moneys paid on the contract. The court held that no counterclaim was proved, and on conflicting evidence submitted to the jury the question as to what the terms of the contract were with direction that if they were as claimed by del end-ant, he was entitled to a verdict. Held, that this was more favorable to him than a submission of the counterclaim would have been, and that the verdict in plaintiffs’ favor would not be disturbed.
    Appeal from judgment in favor of plaintiffs.
    Action to recover a balance for goods sold and delivered. The answer denied that the goods were of the value claimed, and alleged that the goods delivered were not the kind or quality purchased, but were inferior and could not be used, and counterclaimed for $250 paid on account thereof, and offered to return the goods.
    The goods were to be in accordance with a certain sample. Defendant claimed they were to be silver gilt mouldings which would not tarnish, while plaintiffs claimed that they were to be bronze gilt which would not tarnish or turn black. Those furnished did tarnish, and had to be taken down where they had been used.
    The court, at plaintiffs’ request, charged that the counterclaim was not proved, and submitted to the jury the question as to what the contract was.
    
      John JR. Kuhn, for resp’ts; Thornton, Karle & Kiendl, for app’lt.
   Van Wyck, J.

The court charged the jury that if the contract between the parties was that plaintiffs should furnish bronze gilt mouldings which would not tarnish or turn black, and if they furnished such mouldings, then, the plaintiffs were entitled to recover $121.71.

On the other hand, if the contract was that plaintiffs should furnish silver gilt moulding which would not tarnish or turn black, that then defendant was entitled, to a verdict

To this submission to the jury of these two contentions there was no exception, and there was testimony tending to sustain both. The jury, on this conflict, decided in favor of the first contention, viz., that the contract was to furnish bronze gilt mouldings which would not tarnish or turn black, and that such mouldings were furnished.

After a careful examination of all the testimony in the case, we see no reason to disturb their decision. The submission of these two conflicting contentions to the jury was more favorable to the defendant than if the counterclaim on a supposed breach of warranty had been submitted, for the former made a breach of warranty a defense to the whole claim, whereas the latter made a breach of warranty a defense to a part of the claim. There is no other exception in the case upon which error can be predicated.

Judgment and order denying motion for a new trial must be affirmed, with costs.

Clement, Oh. J., concurs.  