Fixel v. Marks

This. suit was brought by the plaintiff, purchaser, for damages caused by nondelivery by defendants of 3,734 pounds of mushrooms at the agreed price of 57% cents per pound during the month of October, 1911. The learned judge below awarded the plaintiff $350 damages, thus indicating that the market price during the month of delivery was approximately 67 cents. The testimony, however, does not, on the whole, sustain a finding that it was so high. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event, unless plaintiff will stipulate to accept $175, in which case the judgment will be reduced to that amount, and, as so modified, affirmed, without costs or the appeal to either party. All 'concur.