The plaintiff did not sue for 500, but for the value of 300 pieces, and it will be noticed that the confusion which was created by reason of the departure of Mr. Maass, the defendants’ agent, for Yokohama was in reference to the additional sale of 200 pieces, but there was no serious question but that the plaintiffs had ordered and the defendants had agreed to deliver 300 pieces. The situation, therefore, appears to us, as it undoubtedly did to the learned trial judge, that here was a contract for the purchase of 300 pieces about which there" was no dispute made at the time when the original order was given. . The appellants’' contention that if this view were taken, the • contract thus made being a verbal one, was within the Statute of Frauds, and, therefore, not binding, cannot be considered for the reason that the question, was not raised on the trial.
In addition to the evidence furnished by their letters that the defendants understood that they had contracted to deliver 300 pieces, we have their subsequent conduct in attempting to obtain the goods in the market, and the fact that their agent when examined upon the trial did not in any wise contradict plaintiffs’ testimony as to the making of the contract. If there had been a dispute about' whether this was an order for the absolute sale of 300 or of 500 pieces, then the appellants’ argument would be potent, because there was a question as to whether the minds of the parties met upon such a contract. As we have "shown, however, the plaintiffs did not claim that a contract was made for'the absolute sale of 500, but only of 300 pieces, and that the order for the 200 pieces, about which all the dispute arose, was a conditional one, and subject to future confirmation by the parties.
Another error assigned was hi permitting the plaintiff Samuel Eiseman, against objection, to testify that he had visited certain *323establishments and had ascertained the lowest prices at which they could sell to him changeable Kaiki silks, and that the lowest price was forty-five cents a yard. This information was obtained while the witness was out trying to buy the goods in the market, and though, strictly speaking, not competent evidence of value, the question was proper as showing the effort made by plaintiffs to replace the goods; and as a Mr. Rosenthal, one of the two from whom the witness obtained the information, himself testified to the market value, we do not think the testimony was harmful, particularly when we find that the jury did not adopt this figure, but seem to have taken the value as given by the defendants’ witnesses, of about thirty-seven cents. ■ The defendants not having been injured, therefore, we do not think that the error assigned affords ground for disturbing the verdict.
Another ruling on evidence claimed to be wrong was one permitting the plaintiffs to ask the market value of perfect changeable Kaiki silk of that quality. It will be remembered that at the time the order was given a sample of the goods to be delivered was left with plaintiffs, and that upon this the negotiations were based. This sample was exhibited to witnesses on both sides, and a question was presented as to. whether it was a sample of perfect or. of imperfect goods. The plaintiffs claimed the former, and the defendants as strenuously insisted on the latter. Contending, as the plaintiffs were, that it was a sample of perfect goods, it was proper to ask what the market value of goods of that quality was, just as the defendants’ witnesses were permitted to testify, as one of the latter did, that it was imperfect and full of streaks, and that goods of that character sold for a price even below the contract price. We do not think that the plaintiffs were bound by the defendants’ view as to the character of the goods, and as the sample was produced and a reference made to it in the question objected to, we think that the ruling was proper.
Upon the measure of damages, it was conceded that the true rule was the difference between the contract price and the market value, and the court clearly presented this to the jury. At the close of the charge, however, not satisfied therewith, the defendants’ counsel asked the court to charge “ that in estimating damages, the plaintiffs could not in any view of the case recover more than the. difference *324between 32% cents per yard, and the market value of .imperfect goods, such as the sample, submitted to the witness.” This was ,denied, and, we think, properly, for the reason that the counsel had no right to characterize the goods as imperfect, and to insist that the' court should adopt such characterization. If the word “imper-, feet ” had been omitted, the court would undoubtedly have charged, as it had already done, that the plaintiff could recover but the difference' between thirty-two and a half cents, which was the contract price, and the market price of goods, such as the sample submitted.
Our conclusion, therefore, is that no error was. committed which would justify a reversal, and that the judgment should lie affirmed, with costs.
Van Brunt, P.' J., Williams and Ingraham, JJ., concurred.
. -Judgment affirmed, with costs.