
    HOWELL et al. v. BENNETT.
    (Supreme Court, General Term, First Department.
    December 15, 1893.)
    Damages—Failure to Dent.
    In an action for damages, on the ground that defendant, by false representations as to his ability to pay, induced plaintiff to sell him goods, failure to deny an allegation of the complaint as to the amount of damages sustained does not admit such damages, as the action sounds in tort.
    Appeal from circuit court, New York county.
    Action by Benjamin H. Howell, Thomas A. Howell, Frederick H. Howell, Henry B. Howell, and James H. Post, against James P. Bennett to recover damages for false representations. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court, ■defendant appeals.
    Reversed.
    
      Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Denis A Spellissy and Joseph L. Keane, for appellant.
    Blackwell Bros., (Frank E. Blackwell, of counsel,) for respondents..
   FOLLETT, J.

In 1890 the plaintiffs were wholesale dealers in teas and coffees in the city of New York, and the defendant was a. retail dealer in those articles, and in groceries, in the same city. On the 6th of May, 1890, the defendant, for the purpose of obtaining credit, wrote the plaintiffs that he was worth from ten to fifteen thousand dollars over and above all liabilities, and was doing a prosperous business. Upon this statement the plaintiffs sold on credit to the defendant, on 'May 6th, coffee, at the agreed price of $4,371.57, which he subsequently paid. Afterwards, and before June 28th, 1890, the defendant wrote the plaintiffs as follows:

“New York, -.
“Mess. H. B. Howell, Son & Go.—Gentlemen: I wish- to amend my former statement as follows: My assets exceed my liabilities by not less than twelve thousand dollars. This does not include any horses, trucks, wagons, machinery, fixtures, or good will of my stores. My business is paying about. $15,000 yearly for past 18 months.
“Resp’y, J. P. Bennett."

After receiving this statement, the plaintiffs sold to the defendant teas and coffees for the following sums, on the following dates, on a credit of 90 days: June 28, 1890, $2,971.50; July 10, 1890, $3,367.35; July 14, 1890, $495.38; July 24, 1890, $1,152.34; September 25, 1890, $2,468.42. The goods sold on the 28th of June, 1890, were paid for, but the subsequent bills have not been paid. On the 7th of October, 1890, the defendant made a general assignment. This action is brought to recover damages, on the ground that the defendant obtained the goods by means of false representations in respect to the amount of his property, and of his ability to pay. It should be observed that this action is not to recover damages for the conversion of the goods, the plaintiffs not seeking to disaffirm the sales and recover the value of the goods, but damages for the fraud. It is alleged in the complaint “that the value of said goods, wares, and merchandise so sold and delivered as aforesaid, in July and September, was the sum of $7,211.31, and no part of the price or value thereof has-been paid.” On the trial, one of the plaintiffs testified to the sale of the four bills last above mentioned, which aggregate $7,479.49,. which is $268.18 more than the amount stated in- the complaint, which is evidently the value of certain goods- referred, to by the judge, in his charge to the jury, as having been replevied by the-plaintiffs. On the trial a witness sworn- for the plaintiffs, who had charge of the replevin action, testified that they recovered teas of about the value of $230. The assignee, who was called by the plaintiffs, testified that the plaintiffs replevied- goods of the value of three or four thousand dollars. The defendant testified—and in this he was not contradicted—that he returned about 76 bags of coffee, worth about $2,200; and the- plaintiffs? witness Steven testified that warehouse orders for coffee were returned by the defendant to the plaintiffs shortly before his failure, but he did not know their value. One of the plaintiffs testified that the defendant gave his notes for the sales made in July. The foregoing is all of the evidence bearing upon the question of damages which was given upon the trial. Upon the question of damages the court instructed the jury as follows:

“I have mentioned the sum of $2,468.42. A larger sum has been stated to you, but I withdraw from your consideration the amounts mentioned, because the defendant has given notes for those amounts, and there is no evidence before you showing where the notes are. They have not been produced on the trial, and they may be outstanding now, in the hands of a man who would have a right to sue the defendant, and to recover upon them. Therefore, 1 have withdrawn those from your consideration,—the three items, of $3,367.38, $495.38, $1,152.34,—and I leave only for your consideration the last item, of $2,468.42, for which no note was given. If you come to the conclusion to find a verdict for the plaintiffs, then you may add to that sum interest from the 25th of September, 1890.”

At this point the plaintiffs’ counsel asserted that the damages were admitted in the pleadings. The following are the allegations an the complaint bearing upon this question:

“Fifth. That the value of the said goods, wares, and merchandise so sold ■and delivered as aforesaid was the sum of $7,211.31, and np part of the price or value thereof has been paid. Sixth. That by reason of the premises the plaintiffs have been damaged in the sum of $7,565.28."

These allegations are not denied in the answer. The court then charged the jury:

“I withdraw what I have said as to the amount of damages. * * * The defendant admits certain damages, amounting to $7,483.49, from which is to be deducted the sum of $988.97, the amount of a dividend received, and also the further sum of $272.18, the amount of goods replevied. On that balance you may, if you see fit to award any verdict for the plaintiffs, allow Interest.”

The jury returned a verdict for $7,155.69. The defendant’s counsel did not request that the value of the goods replevied be submitted to the jury, nor did he ask that the jury be instructed to take into account the value of the goods returned by the defendant; but he did take an exception to that portion of the charge instructing the jury as to the amount of the verdict, provided they found one. We think this exception is sufficient to raise the question that an error was committed in submitting the question of damages. In this action the measure of the plaintiffs’ damages would be the value of the goods sold, and not paid for or returned. If, as testified to by the defendant, the goods of the value of $2,200 had been returned, this sum should have been deducted. Again, in an action of this kind, the plaintiffs should not be allowed to recover the value of the goods, without surrendering, or offering to cancel, the notes which were given for them.

It is alleged that, the fifth and sixth divisions of the complaint not having been denied, the amount of the plaintiffs’ damages was admitted. In an action arising out of a tort, and sounding in damages, the defendant, by failing to deny the amount of damages alleged to have been sustained, does not admit them; and the plaintiff must prove the amount sustained by him, or he will be entitled only to nominal damages. Connoss v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 E. D. Smith, 13; McKensie v. Farrell, 4 Bosw. 192; Stuart v. Binsse, 10 Bosw. 436; Gilbert v. Rounds, 14 How. Pr. 46; Vanderslice v. Newton, 4 N. Y. 130; Woodruff v. Cook, 25 Barb. 505; Sedg. Dam. (8th Ed.) § 1260; Pom. Rem. & Rem. Rights, § 617; Moak’s Van Santv. Pl. 798; Boone, Code Pl. § 75; Abb. Tr. Brief, §§ 39, 536, 540.

The court erred in holding the defendant bound by the undenied allegations respecting the damages contained in the complaint. The jury should have been permitted to take into account the value of the goods returned voluntarily, and through the action in replevin. It is quite impossible to determine from the record upon what theory the damages in this case were assessed, and, were it not for the statement that the case contains all of the evidence, we might assume that some evidence was given, or some admission made, which would sustain the verdict; but, from the record as made up, we are of the opinion that an error was committed in the assessment of damages which entitles the defendant to a new trial. The judgment and order should be reversed, and a new trial granted, with costs to the appellant, to abide the event. All concur.  