
    The Eagle Square Manufacturing Co., Resp’t, v. George M. Andrew, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    1. Contract—Damages for breach.
    In an action for goods sold the answer alleged that the goods were not furnished at the time agreed upon, that defendant was thereby delayed in erecting a building, his workmen forced to remain unemployed, and he was also compelled to pay damages to the owner for this delay. Held, that damages for the delay were too remote; the answer does not allege that defendant’s contract with such owner was," in anyway, connected with the purchase of the goods, nor that plaintiff by agreeing to deliver at a fixed time assumed any part of defendant’s obligation under his contract with the owner, nor does it allege that the materials contracted for could not be procured in the vicinity.
    2. Same.
    In actions for breach of contract for the sale and delivery of personal property at a given time, the measure of damages is the difference between the contract price of the chattel and its value on the day on which the contract is to be performed.
    3. Same—Waiver—Acceptance.
    Acceptance of a portion of the property after the time fixed for the delivery of the whole is a waiver of a strict performance as to time in respect to the part accepted and retained.
    Appeal by defendant from a judgment for plaintiff.
    
      George B. Wellington, for resp’t; N. G. Moah, for app’lt.
   Mayham, J.

This is an appeal from a judgment entered upon a verdict of a jury, rendered under the direction of the judge at the circuit.

The action was for a quantity of lumber sold and delivered by the plaintiff to the defendant.

The complaint set out in detail the items of lumber delivered and the date of delivery, the items of lumber as agreed amounting in the aggregate to $300, crediting the items not furnished at $10.24, also a portion returned at $2.10, and demanded judgment for a balance of $278.57.

The answer alleges that the defendant was a builder, had made a written contract to build a house for one Hull, and have the same completed at a time stated in the contract, and that after the contract with Hull he and the plaintiff made an agreement that, in consideration of $300 thereafter to be paid, the plaintiff agreed to manufacture, sell and deliver to the defendant at Hoosick Falls, N. Y., on or before October 15, 1888, a certain number of window-frames, doors and door-frames, blinds, mouldings, rails, and other finishing building material, and that under such contract the plaintiff on or about the 17th of November, 1888, delivered a certain amount and quantity of material, which is the same and all the items mentioned in the complaint under date of November 17, 1888.

The answer then alleges the material was not of the kind and quality called for by the contract and that a quantity of the same Avas returned.

The answer also alleges damage by reason of defendant and his employees being compelled to remain unemployed for want of such timber, and by being compelled to pay damage for not completing building in time, which is alleged as a counterclaim.

On the trial, the plaintiff proved the sale and delivery of the lumber substantially as alleged in the complaint.

The defendant sought to prove that by reason of plaintiff’s failure to deliver the lumber on or before the 15th of October, he Avas required to, and did, pay damages to Hull for failure to complete her house at the stipulated time, which evidently was excluded on plaintiff’s objection.

There was no proof that the lumber was on the 15th of October Avorth more than it was agreed to be delivered for. Nor was there any legal evidence proving the matters set up as counterclaim or recoupment of the plaintiff’s claim.

We think the defendant under the pleadings and proofs failed to establish any legal defense to the plaintiff’s claim, or any part of the same.

The answer does not allege that defendant’s contract with Hull was any part of the contract of purchase of lumber of plaintiff, or that plaintiff by agreeing to deliver the lumber by the 15th of October assumed any part of defendant’s obligation under his contract with Hull.

Taking the agreement as alleged and proved by the defendant, it was at most only an agreement to sell and deliver to the defendant by the 15th of October $300 worth of lumber and building material of a specified kind.

That being so, it cannot, I think, be successfully maintained, the defendant’s liability to Hull, under his contract with her, and the damages for a breach of that contract are the direct, natural and proximate consequences of plaintiff’s failure to deliver the material at the time fixed in his agreement with the defendant, such damages not being in contemplation of the parties at the time and consequently forming no part of the agreement.

In Sedgwick on the Measure of Damages, p. 57, the rule is stated as follows: “In regard to contracts it is sometimes said that the defendant shall be held liable for those damages only which both parties may -be fairly supposed to have contemplated at the time of entering into the agreement as likely to result from it.”

In Lawrence v. Wardwell, 6 Barb., 425, cited by the defendant, the court says: “ The general rule in reference to damages is, that they must be the natural and proximate consequence of the act complained of,” and in the same case the court quotes with approbation the rule as follows: “ The loss of any speculation or enterprise in which a party may have embarked relying on the proceeds to be derived from the fulfillment of an existing contract, constitutes no part of the damage to be recovered in case of breach. So a good bargain made * * * confiding in the vendor’s promise to deliver the article is a consideration aiAvays excluded as too remote .and contingent to affect the question of damages.” See, also, Cassidy v. LeFevre, 45 N. Y., 568.

The rule seems well settled in actions for breach of contracts for the sale and delivery of personal property at a given time, the measure of damage is the difference between the contract price of the chattel and its. value on the day on which the contract is to be performed. Masterton v. The Mayor of Brooklyn, 7 Hill, 62 ; Parsons v. Sutton, 66 N. Y., 92. In Armstrong v. Percy, 5 Wend., 538, the court says : “ When the action is for the breach of contract and no special damages are stated in the declaration, the jdaintiff is confined in his recovery to such only as naturally arise from the breach complained of; but if the damages claimed do not naturally arise from that fact, they cannot be recovered unless they are particularly stated in the declaration, and not then, if they are not proximate.”

Even if the damages claimed could be considered consequential upon the failure of the plaintiff, they must in such case be specially alleged in the answer before proof is admissible.

This, we think, the answer fails to do with sufficient definiteness.

It does not allege that the materials contracted for could not be obtained in the vicinity, nor was there any proof offered to prove that fact. If there was such market and they could have been obtained with reasonable facility, then the delay set up in the counterclaim was not the direct or proximate result of the plaintiff’s delay to deliver the articles, but the result of the defendant’s failure to go into the market and furnish himself with the goods, in which case consequential damages could not be recovered, and the burden was clearly upon the defendant to allege and prove the facts entitling him to recover such damages, Parsons v. Sutton, 66 N. Y, 92, and if he fail to do so the ordinary measure of difference of value between the time of contracting and the time of delivering, is the full measure of damages. Parsons v. Sutton. 66 N. Y., 92.

In this case there is no proof of any difference in value between those times, and consequently no damage is proved.

But aside from the rules we have discussed upon the question of damage, we think the acceptance of a portion of this lumber, after the time fixed for the delivery of the whole, was such a waiver by defendant of a strict performance as to time, as to make defendant liable in this action for the lumber received and retained, and that was the amount for which the court directed a verdict.

In Bailey v. Western Vermont R. R. Co., 18 Barb., 120, the plaintiff contracted to deliver a quantity of iron at a particular time and failed to do so, but delivered a part of it after the time and it was received by the defendant. The court held that the acceptance of a part of the iron after the time was a waiver as to time, and upon that subject uses this language: “ The defendants, by accepting part of the iron out of time, and without objection, waived the part of the contract which required that portion to be delivered in due time, or admitted that it was delivered as soon after that as practicable."

In either case they were bound to pay for the amount delivered. We think the case at bar is substantially, on this point, like Bailey v. R. R. Co., supra.

On the whole, we think the learned trial judge was right in directing a verdict, and that the judgment on the same should be affirmed.

Judgment affirmed, with costs.

Learned, P. J., and Landón, J., concur  