Opinion
December 11, 1951.
Appeal from Supreme Court, New York County.
In the decision of the prior appeal in this action, we were obliged to point out that there was no sufficient showing of the difference between the value of the goods at the time of delivery and the value they would have had if they had answered to the warranty ( 277 App. Div. 687). On the second trial, while there was an attempt to make this showing, it rested upon general observations that the goods delivered were not as warranted and a claim that the price received for the goods in separate sales over a period of several months was a true reflection of their value. There was no showing as to the differences in quality on the several sales or that the variations in the price were reflections of variations in the quality. The compilation of sales on its face appears to support the contention of appellant that there was a falling market in the product over the period in which the sales were made.
Another difficulty in the case is that there is no precise showing of relative values in New York City, which was the place of delivery under the c.i.f. contracts in suit. The showing of values was at Los Angeles, with only an indication that the relative values would have been approximately the same in New York.
We accept the findings of two trial courts that there was a breach of warranty and substantial damage in this case. There is enough in the record to justify a finding of a difference in value of 3 a pound on the material which was not prime. We find that such material totaled 269,226 pounds and such a finding would support a verdict of $8,076.78. We will allow plaintiff a recovery of that amount without requiring another trial. Accordingly, the judgment appealed from will be reversed and a new trial ordered, with costs to appellant to abide the event, unless plaintiff stipulates to a reduction of the judgment to $8,076.78, with interest.
Peck, P.J., Dore, Callahan Van Voorhis and Shientag, JJ., concur.
Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event, unless plaintiff stipulates to reduce the judgment to $8,076.78, with interest, in which event the judgment, as so modified is affirmed, without costs. Settle order on notice.