John Clark, Respondent, v. Thomas Stewart et al., Defendants, Frank H. Clergue, Impleaded, etc., Appellant

John Clark, Respondent, v. Thomas Stewart et al., Defendants, Frank H. Clergue, Impleaded, etc., Appellant. (Argued June 9, 1891; decided June 23, 1891.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made the second Monday of September, 1888, .which affirmed a judgment in favor of plaintiff, and affirmed an order denying a motion for a new trial. This action was brought to recover damages for an alleged breach of contract to ship a quantity of ice. The contract contained a provision that, “ in case of breach of contract by either party, he should pay to the other $1.50 per ton for the quantity not delivered or.accepted, as liquidated damages.” The decision in this case was based upon the ground that the verdict was too large, in view of the rule of damages laid down by the court, which was not .objected to, and the undisputed facts. The rule so laid down was the difference in the contract price and the price paid by plaintiff to make up the quantity not delivered. The court say: “ The ease furnishes no basis for the verdict rendered, and the defendant’s motion was, therefore, well founded, but at the General Term he was denied the benefit of the proper application to the facts of the case of the rule of law held by the trial court, on the ground that such rule was an erroneous one, and that plaintiff was entitled to recover at the rate per ton stipulated in the contract. But no objection was taken by the plaintiff to the ruling of the trial court, and if he had objected and excepted, inasmuch as he did not appeal, he was not entitled to argue that question at the General Term. “ The rule of damages stated by the trial judge was acquiesced in by both sides, and the defendant should have the full benefit of its proper application to the case.” J. D. Fessenden for appellant. Henry Daily, Jr., for respondent. [MAJORITY — Brown, J.,] Brown, J., reads for reversal and new trial, unless plaintiff stipulates to reduce the verdict to $5,107.84, and if such stipulation is filed within thirty days, the judgment so reduced and modified is affirmed. All concur. Judgment accordingly.