Opinion
May 4, 1923.
George Ryall [ Isaac N. Mills of counsel; W.J. Magee with him on the brief], for the appellants.
Bouvier, Caffey Beale [ Phelan Beale of counsel], for the respondent.
The action was brought to recover damages for breach of an alleged warranty of quality of certain condensed milk sold by the defendants to the plaintiff for export to France. Upon arrival in France the greater portion of the milk was found to be unfit for human consumption, and was rejected there by those to whom the plaintiff had resold it. The plaintiff relied upon an implied warranty that the milk would be fit for human consumption. At the trial the plaintiff withdrew its first and second causes of action and sought to recover only on the third and fourth. In both latter causes of action the plaintiff alleged general damage only and no special damage. The defendants allege errors on the trial — hence this appeal. A new trial will have to be ordered because of the following errors.
Plaintiff was permitted in the third cause of action to show as its damage an amount which it had paid pursuant to a judgment of record rendered against it by a purchaser in France. This was error for the reason that the defendants were not parties to said action and hence not bound by the judgment ( Eytinge Co., Inc., v. Atlantic Transport Co., 160 App. Div. 635), and on the ground that it was, in any event, special damage which the plaintiff had not pleaded. ( Parsons v. Sutton, 66 N.Y. 92, 96.)
On the fourth cause of action plaintiff was permitted to prove as its damage the difference between the purchase price in New York and the selling price in France, without any allowance being made for cost of transportation, war risk insurance, etc. This also was error, because it was special damage which the plaintiff had not pleaded. ( Parsons v. Sutton, supra.)
In addition, the learned trial court, having directed the jury, if they found for the plaintiff on both causes of action, to bring in a verdict for the amount which the plaintiff had paid out under the judgment in the third cause of action and the amount for which the plaintiff had sold the goods in France less the purchase price on the fourth cause of action, thereafter charged the jury as his final instruction to them that if the plaintiff proved its causes of actions, it was entitled to recover, as its measure of damage, the difference between the value of the damaged goods and the value that the goods would have had if in accordance with the contract, both values being taken at the port of New York. No evidence whatsoever had been given by the plaintiff as to these values, the plaintiff having contented itself with proving the amounts as already noted.
So far as the appeal includes an appeal from the order denying the motion to suppress certain depositions, the appellants expressly state in their brief that "The appeal from the last mentioned order, however [order denying defendants' motion to suppress certain depositions] is not pressed herein."
For the foregoing reasons it follows that the judgment and order denying a new trial should be reversed and a new trial granted, with costs to the appellants to abide the event.
DOWLING, PAGE, MERRELL and McAVOY, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellants to abide the event.