Darling v. Scott

Judgment and order reversed and new trial granted, with costs to abide the event, upon the ground that it was error to the substantial prejudice of the defendant for the trial justice to take out of the case (as he did in effect) in his instructions to the jury, the variance in the length of the strainer from twenty feet to fifty feet as an item or element in plaintiff’s performance of the contract. We think that at least the question whether or not the variance was material should, upon the evidence, have been submitted to the jury. Jenks, P. J., Mills, Rich, Blackmar and Jaycox, JJ., concur.