
    George Burnham and Others, Respondents, v. The Edison Electric Illuminating Company of New York, Appellant.
    
      Trial—not conducted on the theory of the pleadings'—-acquiescence therein.
    
    Where an action for the purchase price of certain boilers, in which a defense of a breach of warranty, and a counterclaim for the plaintiffs’ failure to remove them, as required to do by the contract, have been interposed, has not been tried, upon the theory that the breach defeated the plaintiffs’ claim, but that they might recover the purchase price, less the defendant’s set-off of damages arising out of such breach, and the defendant does not except to the charge of the court, nor move for the direction of a verdict, or for a dismissal of the complaint, an appellate court must assume that the defendant, by its acquiescence in the charge, has admitted that the case was put before the jury upon the proper theory, and that the rights and liabilities of the parties were controlled by the rules, of law pronounced by the judge to be applicable to the case at the trial.
    Appeal by the defendant, The Edison Electric Illuminating Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 5th day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 3d day of July, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Eugene H. Lewis and Frederick Green, for the appellant.
    
      E. P. Johnson, for the respondents.
   Patterson, J.:

This action was brought to recover a balance alleged to be due of the purchase price of two boilers sold by the plaintiffs’ assignor and delivered to the defendant, and “ installed ” and put in place on the defendant’s premises under a special contract by which, among other things, it was provided that one-half of "the purchase price should be paid at the time of the installation of the boilers, and the other half six months from that time. Credit is given for one-half of the purchase price. The answer admits the making of the contract, but sets up that the boilers were purchased by the defendant upon an agreement and guaranty that they should be of good material; that the workmanship in the manufacturing and putting up should be first class in every way; that, when set up, they should be tested and made tight under a certain hydraulic pressure; should be able to carry 200 pounds of working pressure; and that the boilers so to be installed should be superior and more efficient than a boiler of another named type; and that, if they did not appear in every respect to be superior and more efficient than, the other type of boiler, the sellers should, at the end of six months from the installation of the boilers, repay such part of' the purchase price as had already been paid, less a sum of $450 per boiler, to be retained as rent; and that the sellers should remove, at their own expense, the boilers from the defendant’s premises and release the defendant from all claims in respect thereto. The answer then sets up a breach of the contract with reference to the stipulated superiority over the other type of boiler, and that those furnished by the sellers were of poor material and bad workmanship and were unmerchantable and dangerous in operation, and that the boilers were never tested under hydraulic pressure and were not able to carry 200 pounds of working pressure, and that the sellers, although notified by the defendant, did not comply with the terms and. conditions of the contract and failed to remove the boilers. A counterclaim was interposed for damages alleged to have been sustained by reason of the failure of the sellers to remove the boilers and to return the amount paid on account of the purchase money minus the rent properly to be retained. As the issues were framed by the pleadings, the' establishment of the affirmative defenses became the principal subject of consideration at the trial. The defendant claimed the affirmative and it was conceded to it. The case was not tried strictly upon the lines of the interposed defenses, but, on the contrary, it was conducted and went to the jury, not on the theory that the breaches of contract would entirely defeat the plaintiffs’ cause of action, but that they might recover the purchase price remaining unpaid, and that the breaches of the contract by the plaintiffs, if proven, entitled the defendant to set off or recoup against the plaintiffs the amount of the damage sustained by reason of such breaches. The judge charged the jury that if there were such substantial breaches, it was for them to fix the amount of the damage sustained by the defendant and deduct it from the purchase price unpaid; and that the measure of damage was the difference between the value of the boilers, if they had conformed to the warranty, and their value in the condition in which the jury might find they were at the time the breaches were committed. There was no exception taken to the judge’s charge; there was no' motion made for the direction of a verdict, or the dismissal of the complaint. The defendant acquiesced in all that the judge charged, and by such acquiescence admitted that the case was put to the jury upon the proper theory, and that the rights and liabilities of the parties were controlled by the rules of law pronounced by the judge to be applicable to the case at the trial. Under such circumstances, we would not be justified in declaring that there are reversable errors appearing in this record.

Nothing remains for consideration then, but the facts as they are brought up on appeal from the order denying the motion for a new trial. What was in contest between the parties as to those facts, under the manner in which the cause was tried and submitted to the jury, related only to the alleged breaches of the contract. There was conflicting evidence on that subject. The express warranty extended to the material of which the boilers should be made, the character of the workmanship in the manufacture, and what is called the installation of the boilers,.their sufficiency to stand a test both as to pressure and as to their being water tight, and that they should be superior to another type of boiler by which, it seems, their efficiency was to be tested. There was a wide variance in the proof with respect to those several matters of fact. Two witnesses on behalf of the defendant stated that the boilers were valueless and were worth little more than scrap iron. A witness, on behalf of the plaintiffs, testified virtually that they answered all the requirements of the warranty, and it also appeared that both boilers were used by the defendant for periods of from eighteen months to two years. On this conflicting evidence, which was properly submitted to the jury under the theory on which the case was tried, the verdict rendered ought not to be disturbed.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.

Judgment and order affirmed, with costs.  