Opinion
April, 1915.
Present — Ingraham, P.J., Clarke, Scott, Dowling and Hotchkiss, JJ.
The court charged that if the jury found for the plaintiff on the issue of false representation, their verdict should be for $7,700, the full amount of plaintiff's claim. The proof showed that plaintiff had at a foreclosure sale bought in a portion of the material which, as we understand the testimony, was the part concerning which he alleged he had been deceived. If such was the case, defendant was entitled to be credited with the purchase price. What, if any, further credits defendant may have been entitled to arising out of the disposition by plaintiff of other portions of the material covered by the transaction between the parties, it is impossible on this record for us to determine. In any event the question of damages was for the jury and not for the court. On the new trial the testimony can be made sufficiently clear to permit the determination of any question arising on this point. On the question of false representations the verdict was against the weight of evidence. For this reason the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.