Opinion
May, 1897.
A.H. Berrick, for appellants.
Louis J. Altkrug, for respondent.
The plaintiff sold and delivered certain goods to the defendants, who returned part of the same to plaintiff, and he sold them for the account of the defendants and brings this action for the difference between the contract price and the amount realized upon the resale.
The course pursued by the plaintiff was the proper one; upon the defendants' returning the goods he had a right to sell the same; such sale must have been fair and must occur in such a way as to secure most nearly a full and fair value for the goods so sold.
It is not necessary to give the defendants notice of such sale, but if it was they appear to have been given sufficient notice in this instance.
We think that the questions as to the fairness of the sale, and as to whether or not there was a warranty, were properly submitted to the jury, and their finding upon both these questions in plaintiff's favor is sustained by the evidence and shall not be disturbed by us.
The verdict in plaintiff's favor for the full amount claimed is all right, and the complaint and the testimony show what the amount claimed was, so that the court had only to add to the verdict the actual sum and it was not error to do so.
We find no error and the judgment must be affirmed, with costs.
Present: VAN WYCK, Ch. J., FITZSIMONS and McCARTHY, JJ.
Judgment affirmed, with costs.