
    REEVE v. GALLIVAN.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Measure oe Damages—Breach oe Contract.
    The measure of damages for breach of contract to sell and deliver is the difference between the contract price and the market price at the time and place of delivery.
    
      Appeal from judgment on report of referee.
    Action by Charles W. Reeve against Jeremiah Gallivan for breach of contract. From a judgment for plaintiff, • defendant appeals.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Edward A. Horton, for appellant
    Johnson. & Lamb, for respondent.
   DYKMAN, J.

This is an appeal by the defendant from a judgment entered on the report of a referee in favor of the plaintiff. On the 10th day of September, 1891, the defendant in this action, under the name of Gallivan & Co., signed a memorandum of agreement in writing, by which he sold to the plaintiff 2,000 casks of pure cider vinegar, which should fully meet all the requirements of the New York state vinegar law, in every possible respect, at 5£ cents a gallon, free on board the cars at the defendant’s mill. The deliveries were to be made in car-load lots, as the plaintiff might order, between October 15,1891, and October 15, 1892. The plaintiff was to furnish the empty casks free on board the cars at the same place. The deliveries of each month were to be paid for on the 10th day of each succeeding month. The plaintiff alleges a breach of that contract by the defendant, by reason of which the plaintiff was compelled to purchase, and did purchase, during the period mentioned in the memorandum, that quantity of vinegar from other parties, at prices exceeding the sum for which the defendant agreed to sell the same, to the damage of the plaintiff of $1,866.57. There was a second cause of action stated in the complaint, for 94 barrels, at $1 each, and $26.28 cooperage charges, incurred by the plaintiff for the defendant’s account. The answer admits the contract, denies plaintiff’s performance of it and the defendant’s breach of it, and denies the plaintiff’s allegations as to damages. It admits the receipt of 90 barrels, and sets up a counterclaim of $82.58 for cider sold to the plaintiff by the defendant in August, 1891. It then sets up, as an affirmative defense,—an excuse for nonperformance,— that the contract sued on is not the entire contract, and that a part of it was oral, to furnish cider as well as vinegar. It alleges a sale of cider on which there was a balance due the defendant of $82.58. It then sets up some other matters not very material to be mentioned here. After finding that the contract was made as stated in the complaint, the referee found, as facts, that the defendant failed and refused to ■deliver the vinegar, or any part thereof; that the plaintiff was compelled to, and did, purchase at different times, during the period in which the defendant undertook to deliver the vinegar, 2,000 barrels, containing 95,056 gallons of vinegar; that the aggregate value of the vinegar so purchased by the plaintiff was $7,014.48, and the aggregate amount purchased of the defendant, at 5£ cents a gallon, would have cost $5,228.08; that the interest upon the difference between the market value and the contract price, calculated from the different months during the year when such vinegar was to be delivered, was $224.88; that the defendant was indebted to the plaintiff for cooperage upon barrels, and for 94 barrels, $96.85, less $68.58, leaving the sum of $27.28 due upon that account from the defendant to the plaintiff. As a conclusion of law, the referee found that the plaintiff was entitled to judgment against the defendant for $2,-038.55, with costs.

The appellant complains chiefly of the damages. He says the last purchase of the plaintiff was 1,305 barrels, October 10, 1892, to> be delivered thereafter, and as his contract with the plaintiff expired October 15, 1892, this last purchase was for future deliveries. But we cannot see how that fact can be invoked in aid of the defendant. The purchase was within the time limited by the contract, and the sum paid was the market value at that time, and that is within the rule of law. The true measure of damages was the difference between the contract price and the market value at the time and place of delivery. Brock v. Knower, 37 Hun, 609, and cases there cited. This case was tried and decided upon that theory, and no error was committed in relation to the damages. All the facts found by the referee are sustained by the evidence. Many of the purchases of vinegar by plaintiff were made in the vicinity of the defendant’s mill, and they all seem to have been fairly made, at ruling prices, and under such circumstances the market price is ordinarily the measure of its value. Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032. We detect no error in the record. Judgment should be affirmed, with costs. All concur.  