
    (88 Hun, 80.)
    W. O. HICKOK MANUF’G CO. V. BLACKHALL.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Sale—Manufactured Goods—Defective Construction.
    Where a person for whom machines were manufactured according to certain patterns claims that the failure of the machines to work as expected was because of the poor work done and materials used in their construction, and the manufacturer claims that the trouble was becausé the patterns were defective, evidence given by the manufacturer of perfect material and construction is sufficient to justify the jury in finding that the difficulty resulted from the defective patterns.
    2. Appeal—Harmless Error.
    An expression of opinion by the court against the abstract proposition submitted in defendant’s request to charge does not prejudice him, where the court charged as favorably on the subject of the request as defendant was entitled to.
    Appeal from circuit court, Niagara county.
    Action by the W. O. Hickok Manufacturing Company against Edward W. Blackball, on promissory notes. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, madé on the minutes, defendant appeals.
    Affirmed.
    Argued before DWIGHT, B. J., and LEWIS, BRADLEY, and WARD, J J.
    Leroy Barker, for appellant.
    Seward A. Simons, for respondent.
   WARD, J.

This was an action to recover the amount of a promissory note of $1,500, executed by the appellant Jto the respondent. The defense was an alleged counterclaim for damages, on account of six defective machines for manufacturing envelopes, which the plaintiff had manufactured and sold to the defendant for $600 each, and the note was given as a result of this sale.

The defendant had patented certain improvements upon a machine for manufacturing envelopes then in use, and the machines in question were to be built upon patterns furnished bv the defendant, based upon such patents, and were to be perfect in material and construction. The defendant, relying upon this contract, had contracted to deliver five such machines to a concern called the “Bur-dick Envelope Company,” for $1,200 each, and defendant guarantied to this company that the machines would do perfect work, and turn out 50,000 envelopes a day. The five machines were made and delivered to the Burdick Company, but would not work well, and were failures. The Burdick Company sued the defendant for damages as a consequence, and put him to expense, and he settled the matter at a loss.

The invention was new, and needed to be tested, and the defendant advised the plaintiff to employ one Scott, an expert, to work on the machines, and the parties to this action shared the expense of his compensation. There was conflicting evidence as to the reason why the machines did not work as expected. The defendant claimed it was on account of the poor work done, and the materials used, in the construction of the machines by the plaintiff. The plaintiff claimed it was because the patterns and patents were defective, and the machines constructed upon them would not do service. This question was submitted to the jury, and they found with the plaintiff, disregarding the counterclaim, and giving the plaintiff a verdict for the amount of its note.

Defendant alleges error: First, that there was no proof given of defective patterns or patent, and none would be presumed, and that the defects in the machine must therefore have been in material, or construction, or both. This is untenable, for the reason that there was evidence given of perfect material and construction, upon which the jury could find that such defect was not due to material or construction, and consequently may have been from defective patterns or plans upon which the machines were built. This was one method of proving that the patterns were defective. Second, that the court erred in expressing an opinion against the abstract proposition submitted by the defendant in his requests to charge,—that the defendant might keep the machines and sue for damages or a breach of the plaintiff’s warranty as to material and construction,—although the court did charge as requested. No harm could possibly come from this, as the court had laid down the rule of damages most liberal to the. defendant, as to the machines that had been furnished to the Burdick Company, viz.: That if the defendant recovered at all he was entitled to the difference between the contract price with the plaintiff ($600) and the selling price to the Burdick Company ($1,-200), and also the expenses which the defendant had been put to in putting the machines in the condition necessary to make them fulfill the plaintiff’s contract. To this rule of damages the defendant’s counsel took no exception upon the trial. Ledyard v. Jones, 7 N. Y. 550. Third, that it was error for the court to leave to the jury the question, on the evidence, whether Scott represented both parties in the construction of the machines, or only the plaintiff, it appearing that Scott was engaged in the construction of the machines. This contention is not well founded, as there was evidence from which the jury might find either way, and it was the duty of the court to submit the question to the jury. The court charged fully and fairly upon all the questions submitted, and we can find no error in the charge. The other errors claimed are unimportant.

The judgment and order should be affirmed. . All concur.  