The plaintiffs brought this action for $62 for clothes—a suit, $50, and an extra pair of trousers, $12—alleged to have been delivered October 22, 1906. Mr. Rapp testified that the garments were of the value alleged, that they were ordered the date stated in the complaint, but delivered subsequent to that date. It came out on cross-examination that they did not fit, and were returned repeatedly for alteration, and as often redelivered; the la-'t such incident occurring, June 30, 1908, pending which returns and redeii /eries the suit was worn till, as Mr. Rapp said, technically, the trousers were almost out at the turn-ups. A letter was introduced from the defendant wherein he complained of the cut of the coat, inclosed a check for $8.45 for alterations from the beginning of the year, with inier and said he “should be charged on the basis of $50 for the suit, deducting what it will cost to have the alterations made.’’
This left the cause of action admitted, saving the discrepancy of the time of delivery, and less the cost to the defendant of the alterations to be made; for, though the fastidious may wear misfits, they may not score off a tailor’s tally with their vexations of taste and irritations of modal pride, or effectively counterclaim on implied warranties, without proof of pecuniary damage. Having granted a motion to amend the complaint conformably to the proof, and the defendant’s counsel claiming surprise, the learned trial justice set the further trial over a week, and then, the defendant offering no evidence of" anticipatory deductions, did what he only could do, awarded judgment for the plaintiffs.
Judgment affirmed,' with costs.
GILDERSLEEVE, P. J., concurs. SEABURY, J., concurs in result.