Wiersbach v. Bloch , 72 N.Y.S. 1134 ( 1901 )

Per Curiam.

This is an action for damages for failure to deliver certain pianos under a contract. . On September 6, 1900, the defendants agreed in writing to deliver to the plaintiff 250 pianos at a given price each, at the rate of five pianos a week. On October seventeenth, a new agreement was entered into for the delivery of 250 pianos at certain fixed prices, which agreement, it was stipulated, should cancel the agreement of September sixth. Between the date of the two agreements certain pianos had been ordered, which had not been delivered when the second contract was made. It seems to have been assumed on the trial, and we think that the evidence justifies the assumption, that it was intended .by the parties that the second agreement should apply to the pianos already ordered under the first agreement. The agreement of October seventeenth did not provide for the rate of delivery or terms of payment It is claimed by the plaintiff that this omission was supplied by a later agreement, which the defendants deny. That question was submitted to the jury and found in favor of plaintiff’s contention. There was sufficient evidence to justify such a finding. The complaint alleged the making of the contract of October seventeenth; that the plaintiff performed all the conditions of the contract on her part, and that at all times before and on November 13, 1900, was ready and willing and offered to receive and pay for said pianos, which the defendants refused to deliver. The bill of particulars of plaintiff’s claim for damages showed that he claimed to have lost the sale of twenty-eight pianos to several parties. There is no evidence to show that plaintiff, after November thirteenth, directed defendants to deliver any pianos, or that he sold or had opportunity to sell any pianos. In our opinion the plaintiff, by his complaint and bill of particulars, limited himself to a recovery of the damages he had suffered by reason of the failure of the defendants to deliver the twenty-four pianos ordered prior to November thirteenth. The justice refused, although requested ' by defendants’ counsel, to thus limit the plaintiff’s recovery. In this we think he erred, and for this error the judgment must be, reversed. Certain other questions have been suggested as to the refusal of the justice to charge, which, in view of the conclusion to which we have arrived, need not be passed upon.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment reversed and new trial granted, with costs to abide event.