I dissent. The recovery was for the last shipment, $595.08. The undisputed proof is that th» defendants did inspect this shipment and after such inspection ordered it sent to their South American customers. Upon this proof, as the majority of this court hold that the dismissal of the counterclaim was right because no damage was proved to have been sustained by the defendants in consequence of a failure of the plaintiff to deliver the goods ordered, the direction of a verdict was required and the proof of custom was immaterial.
The judgment and order should be affirmed.
Dowling, J., concurred.
Determination and judgment reversed, new trial ordered, costs to appellants to abide event.