Barretts, Palmer & Heal Dyeing Establishment, Respondent, v. W. Moore Wharton et al., Appellants

Barretts, Palmer & Heal Dyeing Establishment, Respondent, v. W. Moore Wharton et al., Appellants. (Argued December 14, 1885; decided January 19, 1886.) This was an action to recover the contract-price for dyeing a quantity of plain bunting. Defendants set up in their answer that the work was unslcillfully done and as a counter-claim sought to recover the damages occasioned thereby. The referee and the General Term agreed that the evidence substantiated defendants’ claim, that the work was unskillfully done, and that defendants sustained damage by reason thereof, and were entitled to counter-claim the loss, also that the true measure of damages was the difference at the date of delivery of the dyed buntings between their then market value and the market value of the same goods skillfully and properly dyed. To establish the latter, defendants proved actual contracts of sale negotiated by them sufficient to have exhausted the entire stock if it had been in all respects merchantable and equal to the represented and sample gradé. Held, that “ such a sale and disposition of the goods at wholesale and in large quantities and during the ordinary market season for such goods was clearly within the contemplation of the parties.” The General Term differed with the referee as to the sufficiency of the evidence to establish the market value of the goods as they were returned. The court here, after a review of the evidence, concurred with the referee; Francis Lynde Stetson for appellants. John A. Taylor for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for reversal of order of General Term and for affirmance of judgment entered on report of referee. All concur. Order reversed and iudgment affirmed.