#### Abram Van O’Linda and Libbie Van O’Linda, Respondents, *v.*Whitehead Brothers Company, Appellant.

Third Department,

July 1, 1915.

Sale—contract for sale of molding sand construed—action to recover . under contract—verdict against weight of evidence—measure of damages — appeal —failure to object to erroneous rule of damages.

Owners of a farm containing about forty acres entered into a written agreement for the sale of the molding sand thereon at the rate of $200 per acre, tobe paid in advance. The purchasers made the first payment upon the execution of the contract and about two years thereafter made *590another payment and also executed a paper stating that sand had already been taken from less than two acres and acknowledging the two payments made. A year later the parties met for the purpose of adjusting their difficulties and abrogating the original contract, but this agreement was never executed by the owners of the farm. Thereafter, no more sand having been removed, the owners of the farm brought an , action to recover $200 an acre for eight acres of sand under the original agreement. Evidence examined, and held, to establish that there were not more than two and one-half acres of marketable molding sand remaining upon the farm, and that a verdict in excess of that amount is against the weight of the evidence.

*It*seems, that the proper measure of damage in such a case is the difference between the value of the molding sand per acre in the market and the price agreed to be paid by the defendant, and that before the plaintiffs are entitled to recover the full purchase price, they should show, in the absence of any tender, that there was no market for the sand.

Where no exception is taken to an erroneous charge of the trial judge as to the measure of damages, and the appellant does not question the same, the court will not reverse the judgment on such ground.

Appeal by the defendant, Whitehead Brothers Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 13th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

*Pierre E. Du Bois,*for the appellant.

*John H. Gleason [John F. Gleason*of counsel], for the respondents.

Smith, P. J.:

Plaintiffs are the owners of some land located at Cedar Hill upon which was some molding sand. Defendants are engaged in the buying and selling of molding sand in the county of Albany and elsewhere in the State. Upon the 12th day of June, 1906, the plaintiffs and defendant entered into a contract, of which the following is a copy:

> “ I hereby agree and do sell to Whitehead Bros. Co. all the Molding Sand on my farm at the agreed rate of two hundred dollars ($200.00) per acre.

> “Said farm is located at Cedar Hill, containing about forty (40) acres.

> “And I hereby agree to give to the said Whitehead Bros. *591Co. the full term of six (6) years, from the first day of July, 1906, to *remove*the said Holding Sand with full power of ingress and egress for the full term of the contract. Whitehead Bros. Co. to have the sole right to dig sand on this farm during the above term, and the said Whitehead Bros. Co. have this day paid two hundred dollars ($200.00) in advance for the first acre, and each acre is to be paid for in advance. *592It does not appear that the defendant ever took any more sand from the plaintiffs’ farm, the defendant claiming that the plaintiffs forbade their servants from coming upon the farm. This was denied by the plaintiffs, however. That there was some controversy between them is clearly shown, and upon March 29, 1909, the parties came together in the office of one John M. Bailey, an attorney at law, and a paper was drawn, reading in substance as follows:

> *591“ Signed this day, June 12th, 1906.

> “We hereby agree to remove from the said Van O’Linda farm one acre each and every year, providing said Molding Sand is on said farm.

> “ On April 1st of each and every year agree to designate as near as possible one or one and half acres of Molding Sand which they desire to dig during the year.

> “Witness our hands and seals this twelfth day of June, 1906.

> “A. VAN O’LINDA,

> “LIBBIE VAN O’LINDA, “WHITEHEAD BEOS. CO.,

> “ By Lydell Whitehead, *Pres.*

> “Witnessed by

> “ Wai. Whitehead, 2nd.

> “ The above contract, it is understood, does not include or embrace any former contract. A. V. O. L.”

> The defendant paid to the plaintiffs $200 upon the making of the contract. Thereafter, and upon May 6, 1908, the defendant paid to the plaintiffs another $200, and at that time a paper was executed reading as follows:

> “ 81/100 acres taken off.

> “ 10/100 acres taken off along the fence to be included in new contract.

> “ 12/100 acres now measured & staked.

> Whiteheads have pd. $200 for one acre & propose to pay $200 this date and later the balance of sand up to 2 acres adjacent to where it is staked off.

> “ Dated *May*6,1908.

> “WHITEHEAD BROTHERS CO.,

> “by LydéllWhitehead, *President.*

> “A. VAN O’LINDA,

> “ LIBBIE VAN O’LINDA.”

*592“ Referring to the contract of June 12, 1906, and the memorandum of May 6, 1908, by and between Whitehead Brothers Company and Libbie Van O’Linda, in the matter of the sale and purchasé of sand, etc., on the premises of said Van O’Linda in the town of Bethlehem, Albany county, N. Y., it is hereby agreed this 29th day of March, 1909, by and between said parties that William Kimmey, surveyor, shall survey the land where the said Whitehead Brothers Company have already taken off the sand under above contract, and if same does not contain two acres, then said surveyor shall survey off a strip of land next to and adjacent to the land where said sand has been taken off to make two acres, including therein the land where the sand has been taken off as aforesaid, which said two acres of land so surveyed, including the land from which the sand has already been taken by said company, the said Whitehead Brothers Company having paid for two acres of sand. Said Whitehead Brothers Company shall have the privilege of removing this sand therefrom until October 1st, 1909. The said contract of June 12, 1906, is hereby abrogated and annulled and canceled and each of said parties releases the other from all obligation thereunder or pursuant thereto. Witness our hand and seals this 29th day of March, 1909.”

This was drawn in pencil by Bailey, apparently acting for both parties, and as the stenographer had left the office for luncheon the parties were told to come back in the afternoon, when the contract would be written out by the stenographer and they could then sign it. The defendant returned in the afternoon, but the plaintiffs did not return, and the paper was never in fact signed by plaintiffs. Thereafter, and in July, 1912, this action was brought, claiming to recover $200 an acre for eight acres of sand under the agreement of June 12, *5931906. The trial judge submitted to the jury three questions: *First,*what was the purpose of the paper of May sixth, above set forth. *Second,*whether upon the 29th of March, 1909, the parties agreed to annul the contract of June twelfth. Third, the amount of sand upon the plaintiffs’ farm contained within five and thirteen one-hundreths acres, which had been surveyed by a surveyor. The jury was also authorized to find interest upon $200 from July 1, 1908, upon $200 from July 1, 1909, and the interest on $200 from the first of July of each succeeding; year, up to the amount that they found that plaintiffs were entitled to recover. The verdict of the jury was for, $1,125.46, apparently finding for the plaintiffs for five and thirteen one-hundredths acres of land and not allowing for interest. From the judgment entered upon this finding and from the order denying a motion for a new trial this appeal has been taken.

As a matter of first impression the judgment strikes one as extraordinary in allowing the plaintiffs to recover for the value of five acres of sand which has never been delivered and which the plaintiffs now have and can sell to any purchaser. It is apparent from the evidence that this farm was situated in what was called a molding sand belt. That the defendant had competitors is shown by the fact that witnesses were sworn upon the trial who were employees of competitors. If this were personal property passing upon delivery the plaintiffs might tender the property and demand the full purchase price, but no tender has been made or claimed. The proper measure of damage would seem to be the difference between the value of this molding sand per acre in the market and the price agreed to be paid by the defendant. Before the plaintiffs are entitled to recover the full purchase price it would seem that they were at least bound to show, in the absence of any tender which could hardly have been made in this case, that there was no market for this sand in which a sale could be made and their damages at least reduced.

Notwithstanding these views the defendant’s attorneys failed to make objection to the rule of damages as stated by the trial court. To the charge of the trial judge no exception whatever was taken, and the rule of damages therein stated was not *594questioned. Nor is the rule of damage adopted questioned in the appellant’s brief upon this appeal. This court, therefore, will not reverse the judgment for the adoption of an erroneous rule. The suggestions are made, however, for the guidance of the trial court if a new trial be had.

In the paper drawn upon March twenty-ninth it is recited that the contract of June 12, 1906, is abrogated. It is sworn by the plaintiff Abram. Van O’Linda, representing himself and his wife, that that was not read to him by the attorney Bailey upon the morning upon which it was drawn. The other evidence in the case, including that of Bailey himself, who was an uninterested witness, as he represented both parties in that transaction, is to me convincing that that part was read to the plaintiff Abram Van O’Linda, and that he assented thereto. This question was submitted by the court to the jury, which found with the plaintiffs thereupon. If the question were-important in the case I should not hesitate to advise holding that the verdict of the jury was against the weight of evidence upon this question. But I am unable to see how that question is relevant in this case. The parties came together to make some kind of adjustment of their difficulties. They agreed upon an adjustment, which was to be put into writing and signed. Until that paper was signed, then, as was contemplated in the making of the settlement, there was no binding agreement made; and until it was signed the plaintiffs had the right to reconsider and withdraw, and they did so. So that whatever agreement was made in the office before the attorney Bailey, inasmuch as that was not consummated by the signatures of the parties to the writing contemplated, it does not change the legal rights of the parties existing prior to the attempted settlement.

The finding of the jury to the effect that there was five and thirteen one-hundredths acres of land of molding sand remaining upon the farm is, in my judgment, against the weight of evidence. This figure is reached by the survey of land made by a surveyor, Leslie Allen. Allen himself does not pretend to say that there was molding sand to any amount within this five acres, but he made the survey of a plot of land pointed out to him by the plaintiffs. I have carefully examined the *595evidence and I am convinced that only part of this five acres of land contained marketable molding sand. The evidence all seems to indicate that the molding sand was in spots only upon this land; and was not a continual bed of sand covering the entire five and thirteen one-hundreths acres. The proof would seem to me to establish not more than two and one-half acres of marketable molding sand upon the farm in question, and the verdict in excess of that amount is, in my judgment, clearly against the weight of evidence. If the plaintiffs receive the purchase price of this two and one-half acres of sand which they still own and can sell again they probably have much more than they are entitled to under their contract.

I, therefore, recommend that the judgment and order be reversed on the ground that the verdict was excessive and a new trial granted, with costs to appellant to abide the event, unless the plaintiffs stipulate to reduce the verdict to $500, with interest on $200. thereof from the 1st day of July, 1908; $200 from the 1st day of July, 1909, and $100 from the 1st day of July, 1910. If such stipulation be filed, the judgment may be modified in accordance therewith, and as modified affirmed, without costs to either party.

All concurred

Judgment and order reversed on the ground verdict is excessive and new trial granted, with costs to appellant to abide event, unless the plaintiffs stipulate to reduce the verdict to $500, with interest on $200 thereof from July 1, 1908; on $200 from July 1, 1909, and on $100 from July 1, 1910. If such stipulation be filed within twenty days, judgment is modified in accordance therewith, and as so modified judgment and order affirmed, without costs.