
    Thomas Corrigan, Appellant, v. Isaac K. Funk, Respondent.
    Second Department,
    December, 1905.
    Damages—proper measure of damage on failure to exchange lands as agreed ^ exception to statement of court that evidence will be excluded-‘—erroneous charge. .
    When the defendant has contracted to exchange lands, which, for the purpose of the exchange,, are stated to be valued ,át $Í8,000, and, Owing to a defect in.the title to a portion thereof, is able only to convey lands stated in his conveyance to be valued .at $15,000, the -measure of damage to the plaintiff is not the difference between said two sums, but is meashred'b}' the actual value of the lands not conveyed by defendant, together with the necessary expenses of the plaintiff in an attempted performance of the contract. Such expenses include the examination of defendant’s title by the plaintiff.
    When the,- court, in answer to questions of counsel, states that it will exclude certain named items of expense and an exception is taken thereto, the. error is. available on. appeal and it is not 'necessary that the question of the admissibility of the items excluded be raised by exceptions to rulings oh express questions put. When the court, in substance, states to the jury that while they may give credit to the evidence both of the plaintiff's and defendant’s witnesses as to value, “it is for the court hereafter to observe whether their finding is according to the weight of the evidence,” and “ the jury is perfectly free to act, but I caution ■ ■ them not to waste either their own time. .*■ * * or mine * * * in a.trial which goes for nothing,” it is reversible error, being under the circumstances a substantial statement that if the j ury do not find for the defendant their verdict will be set .aside. "
    Appeal by the plaintiff," Thomas Corrigan; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on. the 10th day of June, 1904, upon the verdict of a jury, and also from an order hearing date the 6t.h day of May, 1904, and entered in said clerk’s office, denying the plaintiff's motion for a new trial made upon the minutes.
    
      William G. Beecher [Frederick W. Fielding with him on the brief], for the appellant.
    
      William Hepburn Russell [William Beverly Winslow and John E. Ruston with him on the brief], for the respondent.
   Miller, J.:

The plaintiff and defendant entered into a contract for the exchange of certain real property, the defendant agreeing to convey to the plaintiff two,parcels upon which a valuation of $18,000 was put for the purposes of the contract, and the plaintiff agreeing to convey to the defendant one parcel valued for the purposes of the contract at $39,000. When the time came for closing title a defect in the title of one of the parcels to be conveyed by the defendant was discovered, and deeds of the other two parcels were exchanged, the consideration in the deed from the defendant to the plaintiff of the parcel with the good title being stated at $15,000, and a supplementary agreement was made in which the plaintiff agreed to accept partial performance and to give a reasonable adjournment to enable the defendant to make complete performance in consideration of the defendant’s agreement to perfect the title to the remaining parcel and convey the same to the plaintiff. After several adjournments and extensions of time had been granted, the defendant being unable to perform further, this action was brought by the plaintiff to recover damages for such partial failure of performance, and the only question litigated on the trial was the question of damages. Plaintiff contends that the court erred in holding as matter of law that the plaintiff was not entitled to recover the difference between the sum of $15,000, the consideration stated in the deed of the parcel conveyed, and the sum of $18,000, the valuation of the two parcels stated in the original agreement. While ordinarily in such an action the plaintiff is entitled to recover back the' purchase price, this is not a case of purchase and sale, and it is expressly stated in the original agreement that the valuations are stated for the purpose of the contract of exchange, and while the plaintiff undertook to show by subsequent conversations between the parties and their agents that the sum. of . $3,000 was fixed by agreement' between the parties as the. value of the parcel-not. .conveyed, we think the trial court was right in holding that the evidence failed to establish anything more than an agreement fixing the price for the sole purpose of carrying out the contract, of exchange., - The correct measure of-damages was.the value of the property together with such reasonable and.necessary expenses as the plaintiff incurred in the attempted performance of the Contract, and the supplementary agreement expressly provided that the defendant should reimburse the plaintiff for any reasonable expense incurred by reason of the change in the contract and manner of performance and the adjournment, and delay.

While the plaintiff’s counsel was attempting to prove the damages sustained by.the plaintiff by way of expenses incurred, the following dialogue occurred: Plaintiff’s counsel:- “ Then your Honor excludes all- the items -of expense, as to the legal expenses, incurred by the attorney? The Court: Yes,, but that is all .that I have-in mind. .1 have nothing in mind except the commissions añd expenses of examining title.” Plaintiff’s counsel: “Your Honor exchides the evidence of the apportionment of taxes and interest. The Court: Yes, I exclude that.” Plaintiff’s counsel: “Then your Honor will exclude^, 1 suppose, what he paid, for the searching, of that title ?,' The Court: Yes,” Plaintiff’s counsel: “And the proportionate' part of the brokerage? The Court: I will exclude' that.” Plaintiff’s counsel: “ As to those we except.” -.

' The court in its charge limited the damages by way of: reimbursement for expenses. incurred to the reasonable value of the services of .the attorney employed by the plaintiff Upon the different adjournments, to which an exception was taken. We do not understand the learned counsel for the respondent to argue seriously that;' the plaintiff was not entitled to recover the reasonable: and necessary expenses incurred in the examination of the title, and certainly the law is well settled'in this State that such expenses are recoverable. (Northridge v.. Moore, 118 N. Y. 419.) But it is argued that, the ■exception does not present a question for review for tlie reason that - no qudstion was asked calling for a ruling. The trial court is not obliged to rule' on offers, and it is undoubtedly the better, practice to require the exceptions to be taken to the rulings upon objections to questions put, thus presenting the precise question sought to be , raised, but where the court has distinctly stated that it will exclude a certain class of evidence and has permitted an exception to be taken to such ruling without requiring the precise questions to be put, we think the exception presents the correctness of the court’s ruling. There can be no doubt from the colloquy quoted that the court intended its. statement tó be understood as a distinct ruling upon the question, and permitted the exception to be taken to the ruling for the purpose of obviating the necessity of taking the time necessary to raise the question upon the record ■ by question, objection, answer and ruling. If the court did not so intend, when the exception to the remark was taken, the court should have distinctly advised counsel that he could only raise the question by question and exception to the ruling excluding the evidence.

The plaintiff sought to prove the value of the property by an expert witness who testified to his familiarity with the property and to his knowledge of sales of property in that neighborhood, but who had not actually made any sales himself. The defendant sought to show the value of the property by expert witnesses who testified to having made actual sales of property in the neighborhood. The court in its charge, immediately after referring to the defendant’s witnesses as having been selling property down there for the last three or four years,” and to the fact that their testimony was corroborated by the evidence of the prices for which property had actually been sold, said: “ So the court can. very well see when your verdict comes in whether you have obeyed or whether you have disregarded the court’s injunction.” Plaintiff’s counsel requested the court to charge the jury that they are to say which of the opinions of the experts they shall give credit to, and which opinion they will believe,” to which the court replied: “ That is for them to say, but it is for the court hereafter to observe whether - their finding is according to the weight of the evidence,” and an exception was taken to the modification. Exception was also taken to the remark made by the court in the main charge quoted supra, and in taking the exception the plaintiff’s counsel said :■ I submit that is an intimidation of the jury,” to which the court replied: “Ho, the jury is perfectly free.to act, büt I caution them not to waste either their own time which the public has to pay for, or mine which the public has to pay for in a trial which goes for nothing.” After the plaintiff’s counsel had excepted to said remal’k, the court further said: It is the duty of the court where it can see that the jury has disobeyed its injunctions to set aside what they have done,” to which remark an exception was also taken-. The court might just as well have told the jury that if they did not accept the value given^ by the defendant’s witnesses, their verdict would be set aside, and the jury practically obeyed the injunction, because, the verdict rendered is only slightly more than the amount named by said wit-, nesses, together with the legal expenses incurred in connection with the' different adjournments testified to' by the plaintiff’s witness. 'Such invasion of the province of the jury should not be disregarded in this court unless at least a verdict ought to have been directed in the first instance.

The judgment and order should be reversed and a new trial granted, costs to abide, the event. ,

Bartlett, Jenks, Hooker and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  