Gaetano v. Perretta

Whatever course may hereafter be pursued herein, it was the law of the case as it was sent to the jury that this was an action not on contract, but for damages for deceit, fraudulent representations. The plaintiff’s request to proceed on contract at the end of the case was refused. Of this he cannot complain, since he obtained a verdict in his favor. Not only was proof of damage lacldng, but the rule as to damages laid down by the court for the guidance of the jury was erroneous. In the form of action as submitted, $550 plus interest was not necessarily the amount of damages sustained, if any. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ. Judgment and order reversed on the law and facts, and a new trial granted, with costs to appellant to abide event.