This is an appeal from a judgment entered upon a verdict of the jury and from an order denying a motion for a new trial. Pacts sufficient appear in the opinion and we first consider the questions presented by the alleged submission and arbitration of the controversy prior to the commencement of the action.
We do not think the plaintiff was bound by the attempted submission of the controversy before action brought; if we assume that the submission was by authority, then, from what was submitted, as appears by the letter of the attorney consenting, the arbitrator in his report certainly exceeded his authority by including, as an item in favor of the defendant half the excess of *315freight charges, for clearly that was not within the reasonable scope of the matter submitted, namely, to go over your accounts, measurements and adjustments, and anything else which you desire to eooMbit, unless it be covered by the words in italics, and we are of the opinion that no such scope was intended to be given the arbitrator by the employment of the language referred to; but there is patent reason for rejecting the arbitrator’s report, and that is no authority, for the attorney’s act was proven, even if it be insisted that the submission was in full and intended to cover the question of freight.
Whatever may be said in furtherance of the authority of an attorney to submit a controversy or any action, it is certain that the authority to submit a controversy which is not an action is not within the general scope of an attorney’s authority, and being accepted, if at all, must be proven in order to be binding, and as there was no proof in this instance, it cannot be accepted or relied upon as matter of defense.
Having disposed of so much of the defense interposed as is covered by an alleged submission and arbitration we proceed further with the questions presented on this appeal to which allusions are made upon the appellant’s brief as follows:
Eii’st, That the stone had been sold with the express authority that it should be first, of the best quality;
Second, Thoroughly scabbled, and all irregularities chipped off so as to leave each of the six surfaces of the block partly smooth without excrescences or indentations; and
Third, Not have them weigh more than 160 pounds to the cubic foot.
The plaintiff claims to recover for 30,340 cubic feet of stone at twenty cents a foot, amounting to $6,068.07, less the sum of $3,441.72, paid in cash and an allowance of $557.77 to defendant for shortage in measurement and for bad stone, in all, the sum of $3,999.49, leaving a balance claimed by the plaintiff of $2,068.58. The defendant admits that the price was agreed upon for such goods, wares and merchandise, but denies that either it or their reasonable value exceeded the sum of $4,835.06, upon which he claims a credit of $3,441.72 cash paid as above, and a further sum of $557.77 on account of the bad and unmerchantable stone, which would leave, if this is all there is to defendant’s claim, a balance in favor of the plaintiff of $831.11, exclusive of interest; but he denies that any *316balance whatever is due from him to the defendant, and on the alleged ground of freight charges and half measuring the stone.
So far this is made a defense separate from the alleged defense of arbitration and award. In this connection, the letter of the defendant at pages 26-27 of the printed case is significant as follows: “ I send you two notes of $500 each at two and three months. As soon as we get an adjustment of the stone I will likely send you a check for the balance of the account,” thus conceding, at the date of this letter, April 13, 1895, that there was more than $1,000 due the plaintiff for the transaction.
What the balance was, if anything, does not appear to have been thereafter ascertained by the defendant, for the notes were returned a few days later, and a claim was subsequently made by the defendant that there had been a breach of express warranty on the part of the plaintiff as to the quality of the stone and its weight in blocks; the former insisting that the stone was not properly scab-bled, and as a consequence the blocks were heavier and the freight thereon largely increased.
It is proper to say here that the question of freight constituted no part of the contract between the parties, and it is only claimed as an element of damages by the defendant, in so far as the rate was increased, because of the stone weighing 175 instead of 160 pounds per cubic foot, and that, because of this breach, he was entitled to be credited with the excess of any amount claimed by the plaintiff or to recover the same as an item of his damages.
Was there, therefore, any warranty binding upon the plaintiff, and how far, if at all, has such warranty been violated? If there was, and there has been a violation, then the defendant is entitled to all that flows from its breach, and if the result shall overbalance the amount of the plaintiff’s claim after all deductions properly to be allowed to the defendant, then the judgment appealed from cannot stand, but if there was no such warranty, or if none such survived the acceptance of the material delivered, then the plaintiff was entitled to a judgment for such' sum as was ascertained to be due it upon a proper computation of the accounts between the parties, and as in this instance to the amount of the verdict found by the jury.
If, in addition to what we have already said, the verdict of the jury shall have been founded upon questions of fact that are in dispute, on which it was their province to settle in favor of one party or the other, as is the case wherever there is a conflict of evidence, then, unless prevented by the court from a full and fair considera*317tion of all the evidence in the case by improper direction that the verdict is conclusive upon the court, and we cannot interfere or disturb it.
Defendant’s counsel requested the court to charge the jury that if they believed that it was guaranteed that the stone should not weigh over 160 pounds per cubic foot, on an average, and that it would be properly scabbled, that is such a guarantee as constituted a warranty; also, that if there was such a warranty, it would survive acceptance and the defendant would be entitled to recover such damages as he sustained by reason of any failure to come up to the warranty, and the court so charged.
Defendant’s counsel conceded upon the trial that he could not recover unless a collateral warranty was proven. The court allowed that question to go to the jury so that we ¡are able to say from the record presented, that all the questions which it was material for the jury to consider were properly submitted in the very fair charge of the justice presiding.
The exception of the defendant at the close of the charge to so much thereof- as states that the defendant cannot recover for the defects in quality after accepting the stone, was obviated by the subsequent disposition of that question by the trial court as follows:
The court: “ That is, if there was no warrranty.”
Defendant’s counsel: “ I understand your honor to say that there could be no warranty as to quality.”
The court: “ In the ordinary sale of goods, if I so charged, it is with the qualification that there was no warranty.”
And the question whether there was or was not such a warranty was before the jury as charged by the court upon the defendant’s previous request.
The views above expressed appear to us to dispose of all the exceptions taken by the defendant in the course of the trial without considering and referring to them in detail.
Entertaining this opinion, the verdict and judgment should stand except that from an examination of the record an error appears that must be corrected at this time. The jurisdiction of the City Court permits of a judgment in cases of this character for a sum not exceeding $2,000, with interest and costs.
The verdict of the jury in the case at bar was for the sum of $2,273.33. This amount is $33.33 more than $2,000, with interest from the date when the claim became due, and from which interest was demanded, and upon this excess the court allows 5 per cent, extra allowance.
*318The City Court has control over its judgments and may reduce a judgment entered for more than the jurisdiction permits. It foL lows that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the amount of judgment to the sum of $2,446.96, in which event this judgment and order appealed from are affirmed, without costs.
Eitzsimons, Oh. J., and Conlan, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce amount of judgment, in which event judgment and order affirmed, without costs.