
    Israel Lesin and Joseph Lesin, Copartners, etc., Appellants, v. Meyer Shapiro and Samuel Wolfman, Copartners, etc., Respondents.
    Second Department,
    November 17, 1911.
    Sale — warranty as to condition of horses—breach of contract — bill of sale not containing warranty — failure to show damages — appeal — failure to object to erroneous charge—when error available.
    Where a contract for the sale of horses signed by the vendors stated that the animals were “kind, good Wind, sound, in single and double harness,” but as a matter of fact some of the animals were not sound, there was a breach of warranty although a bill of sale subsequently given by the vendors on the payment of a portion of the purchase price did not contain said warranty.
    The bill of sale was not a new agreement, but simply 4 consummation and execution of the previous executory agreement although it contained a slight modification as to the time installments of the purchase price became due and for giving security therefor.
    The buyer, however, cannot recover for such breach of warranty without evidence of the resulting damages.
    
      Where the warranty is express the measure of damages is- the difference between the value of the thing sold and the actual value. There can be no recovery without proof of such difference.
    Where the answer of the buyer sued for the purchase price is not based upon the express warranty, but claims damages for fraudulent representations by which he was induced to make the contract and no rescission by reason of the fraud is pleaded, so that he stands on the contract alleging the fraud as a defense, he cannot recover without evidence of the damages sustained.
    Although the ¡plaintiff took no exception to an erroneous charge as to the law, the error is available upon appeal where his motion for new trial upon the ground' that the verdict was against the law and evidence was denied.
    Appeal by the plaintiffs, Israel Lesin and another, copartners, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 10th day of May, 1911.
    
      Charles Burstein, for the appellants.
    
      Herzfeld & Sweedler, for the respondents.
   Carr, J.:

The plaintiffs appeal from a judgment of the Municipal Court of the city of New York, in the borough of Brooklyn, in favor of the defendants, entered upon the verdict of a jury. The pleadings were written. The plaintiffs sued to recover for a balance of $500 unpaid on a sale of horses, trucks and certain appurtenances. The answer, after making various denials, set up an affirmative defense to the effect that the sale in question was induced by false and fraudulent representations on the part of the plaintiffs, and relied upon as true by the defendants, by which they suffered damages to the extent of $500. The articles sold consisted of four horses, four trucks, four sets of harness and various other ardides. The price was $2,212.50. Title was- passed under a bill of sale dated March 17, 1911, which recited the receipt from the vendees of the sum of $1,112.50 in cash and the delivery of six promissory notes, payable at various dates thereafter and secured by chattel mortgage on the articles sold, and described in the bill of sale. Of the cash recited as received by the vendors, the sum of $500 ' was represented by a check drawn by the vendees to the order of the vendors in the sum of $500. The defendants stopped payment on this check, and this action has. been brought to recover the amount thereof. At the trial the controversy' between the parties assumed the form of a contest as to whether there had not been a warranty by the vendors that the horses had been sold as “sound.” The defendants so asserted, and gave evidence thereof by producing a writing signed by the vendors, which recited an agreement to sell certain property specified therein for $2,212.50, and reciting the receipt on account of the purchase price of the sum of $600. In this writing the horses specified were described as “kind, good wind, sound, in single and double harness.” This writing was signed and delivered by the vendors on March 14, 1911, thus preceding the execution and delivery of the bill of sale on March VJ, 1911. There was a controversy as to whether the vendors intended to make any warranty as to .the soundness of the horses,, and whether the defendants had not inserted the word ‘sound ” in the writing by deception practiced upon the vendors. The evidence on this question is sufficient to support the finding of the jury in favor of the defendant vendees. It is urged, however, by the plaintiffs, appellants, that all the negotiations and executory agreements of . the parties are to be deemed to he merged in the bill of sale of March seventeenth, and as that instrument contained no warranty, none can be claimed by the defendants. If there was a binding warranty, then the evidence was sufficient tó show a breach thereof, as two of the horses were not “sound,” but were in fact incurably lame to some extent. The written agreement of March fourteenth, in which the warranty appears, was an executory contract of sale. It declares that “We (Lesin Bros.) herewith agree tó sell to Meyer Shapiro — Sam’l H. Wolfman the following— * * * The horses to (be) paid for as follows — Six hundred Dollars on the signing of this receipt, Five hundred Dollars when title to horses, trucks and harness is turned oyer to Sami H. Wolfman & Meyer Shapiro—Eleven hundred Dollars and Twelve Dollars to be paid in monthly installments of One hundred and Fifty Dollars — Horses to be free and clear from all mortgages and encumbrances.” This writing was signed by the vendors, but was preparedby the vendees. Title-to the property did not pass under it, as it provided for a further condition at a future time when title was to be turned over to the vendees. Title could have passed thereafter on making the conditioned further payment, as well by mere delivery of the articles as by a bill of sale. The agreement did not in express terms require the execution and delivery of a bill of sale, and the vendees on tendering the further payment of $500, as therein provided, would have been entitled to the delivery and possession of the articles. The bill of sale executed and delivered on March 17, 1911, was, therefore, not a new agreement, but simply a - step finally consummating the previous executory agreement. It contains a slight modification as to the time of the payments of the balance due on the purchase price and for the giving of security therefor, but it made no other change, and it expressly recites the previous payments made by the vendees under the executory agreement. There is not in the bill of sale one written word that is contradicted or rendered nugatory by the provisions in the executory contract of March fourteenth as to a warranty. Therefore, considering all the circumstances attending this transaction of sale, the written executory agreement and the bill of sale must be considered together as constituting the entire contract between the parties. (Cooper v. Payne, 186 N.Y. 334.) However, if the defendants stand upon a breach of warranty, as they argue on this appeal, the judgment in their favor should not stand, as they have given no evidence of damages resulting from the breach. They bought, not two horses, but eight horses, and various other articles. If there was a breach of express warranty, then the measure of their damages-would have been the difference between the value of all the articles, if they had been as warranted, and the actual value. (Isaacs v. Wanamaker, 189 N. Y. 122.) There was no proof offered to show such difference. While the respondents seem to rest in this court on the contention of a breach of warranty, their answer is so framed that the defense which they set up may be considered as one not resting upon an express warranty but as one based upon damages for fraudulent representations, relying upon which they were induced to enter into the contract of sale. In this light they would be no better off, as their answer does not plead a rescission by them on the discovery of the fraud, but it shows them as standing on the contract and setting up the damages resulting from the fraud as a defense. They gave no evidence as to the amount of such damages, and there is nothing in the case upon which the jury could have found that such damages amounted to $500, or any other definite sum, as the jury must have found in the light of their verdict for the defendants. The learned trial court charged the jury erroneously as to the rule of law involved, for he instructed them practically to find a verdict for the defendants if they found that two of the horses were not “ sound.” There was no exception taken to the charge, but on the coming in of the verdict the plaintiffs moved for a new trial on the ground that the verdict was against the law and against the evidence. This motion being denied and the decision thereon appealed from, this court is not precluded from reviewing the questions of law involved by the fact that there were no exceptions to the charge of the trial court. (Smith v. Long Island R. R. Co., 129 App. Div. 427; Brennan v. City of New York, 123 id. 7; McGrath v. Home Insurance Co., 88 id. 153; Crane v. Barron, 115 id. 196.)

The judgment and order of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Hirschberg, Thomas and Rich, JJ., concurred.

Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.  