
    James Thedford, Respondent, v. Henry L. Herbert, Appellant.
    First Department,
    December 17, 1909.
    Trial — decision on former appeal binding — sale — contract not requiring buyer to accept goods — demand on seller condition precedent to breach — evidence — damages — contract not entire:
    A decision by the Court of Appeals that the evidence would have justified the jury in finding a valid contract is the law of the case on a new trial.
    Where by the terms of .a contract the defendant was required to deliver “about 1,000 tons of broken coal per month * * * alongside within limits,” but the plaintiff was not bound to take the full monthly quota, but merely agreed to live up to his obligations as nearly as possible, the contract was so indefinite both as to the amount to be delivered and the place of delivery that the defendant was under no obligation to deliver until he was notified by the plaintiff of the amount required by him each month and the place of delivery.
    Where during a strike the plaintiff made no demand upon the defendant for delivery of coal under said contract, it is error to allow him to prove as a basis for damages the amount he paid to other persons for similar coal, during that period. The proof should have been limited to the market price of the coal,, and as no special damages were alleged, evidence of what the plaintiff paid to individuals was inadvisable.
    
      As such contract did not call for a total amount of coal to be delivered in installments, but merely for the delivery of 1,000 tons per month for a certain period, each month stood by itself, and if delivery during any month was waived, the seller could not be compelled to”deliver more than 1,000 tons in any one succeeding month.
    McLaughlin, J., dissented, with memorandum.
    Appeal by the defendant, Henry L. Herbert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 28th day of May, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      L. E. Warren, for the appellant.
    
      George H. Fletcher, for the respondent.
   Scott, J.

On the first trial of this action the plaintiff had a verdict, the judgment upon which was reversed by this court on the ground that the evidence failed to show that any valid contract had been entered into- between the parties. (118 App. Div. 181.) On the second trial the complaint was dismissed. The judgment entered upon- the dismissal,was reversed by the Court of Appeals, which held that upon plaintiff’s evidence the- jury might have found that a valid enforeible contract had been made between' the parties. (195 N. Y. 63.) To this extent, therefore, the law of the case is settled. Again the plaintiff has recovered a judgment, and we are now called upon to consider questions not heretofore considered. The contract upon which plaintiff relies is claimed to have been made May 1, 1902, and provides for the sale by defendant to plaintiff of about 1,000 tons of broken coal per month for shipment previous to February 1st, 1903, at 3.90 per ton gross tons alongside within limits.” So far as it was written it was in the form of' a letter by plaintiff requesting defendant to enter an order as above. Ho written or other acceptance of the order was shown except that on May fifth and seventh defendant delivered to plaintiff 566 tons of coal. The plaintiff’s claim is that this coal was delivered in part fulfillment of the contract, and thus, constituted evidence of its acceptance by defendant, and took it out. of the Statute of Frauds. Defendant claims that these were independent sales, having no reference to the alleged contract. On May 12,: 1902, there commenced a strike at the coal mines, which continued until October. twentieth . of the same year, producing a famine in the coal market, which greatly increased the price. Dur-' ing all this time the plaintiff, although.he testifies that lie. was constantly obliged to'buy: coal of the same character which'he .says defendant had contracted to deliver him, madb no demand upon defendant, and made no remonstrance at defendant's, failure to deliver. The plaintiff testified that for three or four weeks before tlie twelfth of May the coal strike was being discussed by the coal men and the. daily press,-and that • “ the -newspapers were taking it up pretty stiff.” The defendant’s printed billheads, in common use in his business, and which were sent to plaintiff for the shipments of May fifth and seventh, contained the notice “ all sales or contracts subject to strikes, accidents or other causes beyond our control.” notwithstanding the verdict of the jury we find it incredible that Tinder these circumstances the defendant would have made a firm Contract at- a low price covering the succeeding nine' months,-with the probability of a general strike staring him in the face, and 'we find it equally incredible that plaintiff, if lie really believed that he had such a contract, should never have called'upon defendant to' deliver coal under it, but should have gone elsewhere .and bought similar coal at much higher prices. The- conclusion seems to us to be inevitable that, neither party at' the time believed or understood ' that any binding contract existed, -

Assuming, however, that the jury was right in finding that there was such a contract it remains to consider the exceptions taken upon " the trial. The contract did not specify.the time or jfface of delivery or the( precise amount of coal to be delivered. All that it said about delivery is. that it .-was to be alongside' within limits.” .What this means is not made .evident by 'the contract itself, and is.no.t explained by the testimony. As to the amount the order is for “ about” 1,000 tons per month, with the following qualifications: • “ For the next three or four months I may not .be- able to take -my full monthly quota, but shall live up to my obligation as nearly as possible,” . Under tins contract the plaintiff was not bound to take the full 1,000 tons per' month, and the defendant could not have insisted upon delivering that amount to him. The amount to be taken was distinctly left open to the plaintiff’s determination. It was, therefore, incumbent upon- him if he desired deliveries under his.alleged contract to notify defendant month by month how much he was prepared to receive. . This he did not do, and in fact made no demand whatever until December, 1902. Under a contract so indefinite as to the amount to be delivered and the place of delivery defendant was under no obligation to tender delivery until demand was made upon him, or at least he was notified when, where and how much to deliver.. The court permitted evidence to be given of the price of coal during the whole period of the strike, even permitting'plain tiff to testify as to the prices at which lie purchased similar coal from other parties. This was erroneous, not only because it covered a period during which defendant had not been called upon to make delivery, but also because the proof should' have been limited to the market price of coal. Ho special damages were alleged, and it was incompetent to show what plaintiff paid in individual cases. The error in the receipt of this evidence was accentuated' by the charge, duly excepted to, which under other circumstances might not have been important, that “ the plaintiff is entitled to the difference .between the value to Mm of the coal contracted for- if it had been delivered, and the price that the plaintiff Was to pay therefor, to be ascertained by the jury upon all the facts in the case.”

The true rule in such a case is that if plaintiff is entitled to recover anything it is the difference between the contract price and the market price of similar coal at the times when deliveries should have been made. As we construe the contract,-a demand was necessary to put plaintiff in default as to the deliveries to be made in any month. As to any month in which no demand was made, the plaintiff cannot recover at all, for the contract -was not for 9,000 tons to "be delivered in installments, but for 1,000 tons per month. Each month, therefore, stands by itself, and if delivery during any month was excused or waived, the defendant could not be compelled to make up the amount by delivering more than 1,000 tons in a succeeding month,

. The judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event. ' - ■

Ingraham, Laughlin and Houghton, JJ., concurred; McLaughlin, J., dissented. .

McLaughlin, J. (dissenting):

The Court of Appeals, on the former appeal in this case, held that a grima facie case was made for the jury, and reversed this court and ordered a new trial. (123 App. Div. 923; revd., 195 H. Y. 63.)

. The evidence introduced on the last trial was substantially the same as that on the former. - The case was, therefore) properly sent to the jury, and the verdict cannot be said to be against the weight of evidence. :

I vote to affirm the judgment, with costs.

Judgment and order, reversed, new trial ordered, costs to appellant to abide event.  