
    Greene and another v. White.
    
    
      Error.
    
    
      JTor error in the charge of the court, the judgment must be reversed, unless the prevailing party show affirmatively that the error could not possibly have influenced the verdict; the burden of showing it is upon him.
    Appeal from the general term of the Supreme Court, in the fifth district, where a judgment entered upon a verdict in favor of the plaintiffs had been affirmed.
    This was an action by Robert Greene and Benjamin F. Greene against James M. White, for the breach of a contract in writing between the parties, in the following terms :
    “ Agreement made thirteenth day of September 1860, between James M. White, of the one part, and Robert Greene and Benjamin F. Greene, of the other part, as follows: The said White hereby agrees to sell to said R. & B. F. Greene, the schooner called the Lucy Orchard, her tackle, apparel, furniture and boat (now on a trip to Brighton), for the sum of three thousand dollars, and to deliver her and give a bill of sale of her to them, free of liens and incumbrances, on her arrival at Oswego, on the said R. & B. F. Greene paying to him in cash, $250, and their promissory notes payable as follows, viz.:
    One, payable January 1,1861, for $250, with interest, “ July 1, " “ 500, “ January 1,1862, “ 500, “ “ July 1, “ “ 500, “ Dec. 1, “ “ 500, “ “ July 1,1863, “ 500,
    
      “And the said R. & B. F. Greene, in consideration thereof, agree, on the arrival of said schooner, and a ^delivery of a hill of sale of her, her tackle, apparel, furniture, and boat, to pay and give their promissory notes to said White, payable as above. It is understood by the parties, that said R. & B. F. Greene are to have the freight earned by said schooner, on her present trip, out and back, they paying the expenses of the trip. In witness whereof, the parties have hereto subscribed their names the day and year first above written.
    J. M. White, B. F. Greene, Robert Greene.”
    The plaintiffs proved a tender of the money and notes; a demand for a bill of sale of the vessel; and ,. refusal by the defendant. Evidence was given of the value of the vessel, ranging from $5000 as the highest estimate, to $2500 as the lowest. Evidence was also given tending to show that the freight earned by the schooner on her then trip exceeded her expenses.
    The learned judge charged the jury, that the rule of damages in regard to the vessel was the difference between the contract price for it and its actual valúe; that if they should assess the value of the vessel at the contract price, or less than that, then no damages could be given to the plaintiffs on account of the vessel, but that they would nevertheless be entitled to a verdict for such net freight as the jury should find had been made on the trip.
    The defendant’s counsel requested the court to charge the jury, that if the value of the vessel and the noi, freight together, did not exceed $3000, the plaintiffs were not'entitled to recover. The judge refused soto charge, and the defendant excepted.
    The jury rendered a verdict in favor of the plaintiffs for $700; and the judgment entered thereon having affirmed at general term, the defendants took this appeal.
    
      Perry, for the appellants.
    
      Marsh, for the respondent.
    
      
       Also reported in 4 Trans. App. 382.
    
   *Hunt, J.

The proposition “ that if the value of the vessel and her net freight together did not exceed $3000, .the plaintiffs were not entitled to recover,” was sound, and the judge erred in refusing so to charge the jury. The judge erred in the charge actually made, “ that if they should assess the value of the vessel at the contract price, or less than that, then no damages could be given to the plaintiffs on account of the vessel, but, that the plaintiffs would nevertheless be entitled to a verdict for such net freight as the jury should find had been made on this trip.” The contract for the purchase of the vessel and her freight was entire; the two subjects together were purchased and sold at the price of $3000, and as one purchase and sale; there is no power or right of separation into parts. If the aggregate value of the vessel and her freight did not exceed the price agreed to be paid for them, then no damages were sustained by the defendant’s refusal to deliver. That this charge was erroneous, was also the opinion of the general term of the fifth district, the opinion being delivered by the same judge who presided at the circuit. The judgment was affirmed, upon the ground, that although the charge was erroneous, it was cured by the verdict of the jury, and that no injury was sustained by the defendant in consequence of the error.

If it is possible that the defendant was injured by this error, the verdict must be set aside. It is not for the .defendant to show how or to what extent he was prejudiced; the existence of the error establishes his claim to relief. If the - plaintiffs wish to sustain the verdict, it is for them to show, that the error did not and could not have affected it. (Thacher v. Jones, 31 Maine 528, 534; Lane v. Crombie, 12 Pick. 177; Clark v. Dutcher, 9 Cow. 674; Camden and Amboy Railroad Co. v. Belknap, 21 Wend. 354; People v. Wiley, 3 Hill 194.)

The plaintiffs insist that this is established. They insist, that if the jury did not find the vessel to be worth less than $3000, then the latter portion of the objectionable charge, that the plaintiff would still be entitled to the value of the net freight, was not applicable ; the contingency therein stated *did not occur. The verdict of $700 is claimed to be conclusive evidence that the vessel alone was worth more than $3000, as no witness put the value of the freight at more than about $200. This may be true, and I think it quite probable that it is. It would, however, be unsafe to disregard an admitted error, on this theory. No one can certainly say how the minds of individual jurors are affected, or how a united result was reached.

The fact, as charged by the judge, that the parties had themselves, by their contract, fixed the value of the vessel at $3000, was evidence that it was worth that sum. Here were conflicting valuations, by different witnesses, ranging from $2500 to $5000. Can any one undertake to say, that some juror was not influenced by this statement, of its value, and, in consequence thereof, added $100 or $200 to the sum he was willing to agree upon as a verdict, more than he would otherwise have done? With the defendant striving to show that the vessel was worth but $2500, and the plaintiffs claiming a larger sum, it would be rash to say, that an assertion by the defendant, deliberately made, and in writing, that the vessel was worth $3000, did not weaken his case, and strengthen that of the plaintiffs. The judge, in substance, charged, that the defendant had so asserted and agreed. A new trial should be ordered.

Judgment reversed, and new trial awarded.'  