This case differs essentially from the one between these parties, decided by the Superior Court in March, 1864. In that case there was no proof of any mutual agreement between the parties that the damaged goods should be sent to auction; and it was for that reason—the absence of such evidence—that the Superior Court held the promise of the plaintiff, to allow the damages ascertained by the sale at auction to be deducted from the rent, to be without consideration and void. But in the case at bar, there is testimony showing a mutual agreement, concurrent in point of time, between the parties, that the goods should be sent to auction, and that the damages sustained by the defendants should thus be ascertained, and then deducted from the rent; *84and therefore the ground upon which the Superior Court held the plaintiff’s undertaking to he void is removed, and there can be no doubt that his agreement was founded upon a sufficient consideration (Chitty on Cont., 29).
I should, therefore,'be in favor of reversing this judgment,, were it not that the point does not seem to have been presented to the court below. The case seems to have been tried and disposed of below, upon the assumption that the proof did not show a mutual agreement, but only an undertaking upon the part of the plaintiff, subsequently acted upon by the defendants, which, however, would not support the promise of the plaintiff (The Utica, &c., Railroad Co. v. Brinckerhoff, 21 Wend. 139), and the defendants did not direct the attention of the court below to the fact that any mutual agreement, concurrent in point of time, had been shown, nor ask to be permitted to go to the jury as to whether any such had been proven. The ground assunled by the defendants, was, that if the jury “ found that fas ffaimtiff\&d agreed to ascertain such damages by having the goods sold at auction, and deducting the amount so obtained from the invoice price of the same, and to apply the amount so ascertained in payment of the rent as it fell due, and that all that was done, then the verdict should be for the defendants.”
But this could not be sustained; because the proposition did not involve the necessity of the jury finding a mutual agreement, but only an undertaking on the part of one party, which would he without consideration and void. The Marine Court was therefore right in refusing the request made by the counsel for the defendants, and as the counsel did not take any exception to the judge’s peremptory direction to the jury to find for the plaintiff, and did not ask judgment in favor of the defendants on the evidence, on the ground that there was a valid mutual agreement, concurrent in point of time, proven; nor ask to have the question whether such an agreement had been made, submitted to the jury, it is too late to raise the point now, and therefore the judgment should be affirmed.
Judgment affirmed.