On appeal from a judgment of the Supreme Court.
For the defendant-appellant, Walscheid & Rosenkranz.
For the plaintiffs-respondents, Isadore Waks and Archibald Kreiger.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment in favor of the plaintiffs-respondents and against defendant-appellant,
David E. Brawer, in the sum of $11,765, which was entered on a moulded verdict and on an allegation of a breach of the defendant's alleged warranty of authority to make an oral contract. The complaint alleged that on October 10th, 1941, the defendants David E. Brawer and Abraham Brawer, represented that they were agents for Brawer Brothers Silk Co., Inc., and authorized to sell for it certain sponges which it had owned for six or seven years; that the plaintiffs, relying on this representation, agreed to buy approximately 12,000 pounds of the sponges at a price of thirty-five cents per pound; that plaintiffs then took a part of the sponges and paid $100. Thereafter, when the plaintiffs went with a check for $2,000 to buy more sponges, they allege that they were informed that the sponges had been sold elsewhere and that there were no more for sale. The defendants assert that there had been no sale in bulk to plaintiffs or either of them, but that the only arrangement was that plaintiffs could buy any desired quantity from time to time if the owner still had some. There was a sharp conflict in the testimony as to the transaction between the parties.
Three points are argued by appellant. The first deals with the authority of the trial judge to mould the verdict of the jury into a verdict for a sum of money. The testimony on behalf of the plaintiffs was that the market price of the sponge at the time of the alleged sale was from $1.25 to $1.50 per pound. In the interrogatories propounded by plaintiffs to defendants, the question was asked as to the quantity in pounds sold to other purchasers and the answer was 13,280 pounds. The question was left to the jury as to whether, if plaintiffs recovered, they would be entitled to recover on the basis of $1.25 or $1.50 per pound. The jury returned the following verdict: "We the jury find the plaintiffs should be given the difference in price of 35 cents per lb. and the market price of $1.25, which is a difference of 90 cents per lb., with the exception of the goods already received."
The trial judge in his charge to the jury said; "In accordance with their theory and the interrogatories that are before you, there were 13,280 pounds left of this sponge. 13,280 pounds times 90 cents is $11,952, and 13,280 pounds at $1.15
a pound is $15,272, which they say they lost by reason of this breach of the warranty that he was authorized to sell on behalf of the Silk Company.
"Now, one of these sums, either 90 cents a pound or $1.15 a pound, whichever you conclude is the difference between the market value and the contract price, should be, of course, less the amount of money represented by the excess over the 300 pounds that they took in the beginning. 820 pounds at 35 cents a pound is $287, and they paid on account of that $100, which leaves a balance of $187, which, if the plaintiffs are entitled to recover, should be deducted from the amount that you find to be the total difference between the contract price of 35 cents a pound and the market value as of October 10th, 1941."
Further, he said: "If you take the plaintiffs' version of the arrangement and find that David Brawer did breach his implied warranty that he was authorized to sell this merchandise, then it would seem to me that the plaintiff would be entitled to either $11,952 ...