
    Charles M. Aikman, Respondent, v. Wahnetah Silk Company, Appellant.
    Second Department,
    December 29, 1905.
    Damages — failure to prove damage in action for a breach of contract.
    When a contract for the manufacture and delivery of cloth by the defendant fixes no time for delivery and the contract contemplates that instructions as to the color and design thereof are to be given by plaintiff, the law imports an obligation to deliver within a reasonable time after such instructions.
    When, in an action for the breach of such contract by the defendant, it is shown that such reasonable time is sixty days from the date of said instructions, and there is no evidence of the market value of such goods at the expiration of said sixty days, no damage is shown and it is error for the court to direct a verdict.
    Appeal by the defendant, the Watmetah Silk Company, from a judgment of the Supreme Court in favor of the plaintiff, entered • in the office of the cleric of the county of Kings on the 7th day of December, 1904, upon the verdict of a jury rendered by direction of the court after a trial at- the Kings County Trial Term.
    
      Edward H. M. Boehr, for the appellant.
    
      William B. Hurd, Jr., for the respondent.
   Willard Bartlett, J. :

At the close of' the trial the proof was such as to entitle the plaintiff to recover from the defendant such damages as the plaintiff’s assignors, the firm of Lusslcy, White & Coolidge ■ of Chicago, had sustained by reason of the defendant’s failure to deliver to that firm 1,268 pieces of printed velours at the price of twenty-sev;en and one-half cents a yard. The learned trial judge directed a verdict for the plaintiff for $1,585 damages, upon the assumption) as- clearly appears .from the record, that the evidence established a difference of at least two and one-half cents a yard between the price agreed upon in the contract as that at which the velours should be'purchased and sold and the market price of such goods at the time when the purchasers were entitled to have the same delivered.. Counsel for the defendant had asked to go to the jury upon the 'ground that there was a question of fact as to what-was the market price,' and he duly excepted to the denial of his request and to the direction óf a verdict. I think that this exception was well taken for the reason that the case is destitute of evidence as to the market price of printed velotirs at the period when i,t was incumbent upon-the defendant, Under tlie contract,- to make delivery of the 1,268 pieces in question!. ,, ' .

The contract contemplated, the giving,of instructions by the pur- ’ chaser to the manufacttrer to print the material in the desired colors, shades and combinations," before the manufacturer was expected to do anything in the premises. It began with a direction from the plaintiff’s assignors'to the defendantto “enter our order for two thousand (2,000) pieces of printed velours, same to be specified ,f or during the next six (6) months.” In the plush trade the words “specified for” have á teehical meaning and signify the giving of instructions in respect to the printing. It is conceded by the " learned counsel for the respondent in his brief that the goods for the non-delivery of which this suit was brought were not “ specified for ” until October 10,1903 — the proof, indicates the twelfth. The contract fixes no time for the delivery — hence the law imports an undertaking to deliver within a reasonable time. The only evidence on this subject in the record shows that sixty days from the date of the receipt of the order or specification for printing would have been a reasonable time within which to deliver the goods. The agent of the defendant, through whom the contract was made and whose credibility is attested by the fact that he was called as a witness by both parties, said it would take the mill of the Wahnetah Silk Company perhaps sixty days or two months to print the,velours specified in the final-order. “So having received an order for specification on the 10th of October, not all of them could possibly have been delivered before the lapse of about sixty days, on an order of twelve hundred.”

blow, if any evidence' had beeh given showing what was the market price of printed velours similar to the goods in controversy on'or about the 10th of December, 1903, there would have been a basis in the proof for the direction of a verdict. But such evidence is wholly wanting. The plaintiff’s assignors were not entitled to have the goods delivered untihthat date, and there is no proof that if they had been then delivered the purchasers would have been any better off than they are now — in other words, there is nothing to show that they suffered any actual damage by reason of the- defendant’s failure to deliver.

For this defect in the proof we are constrained to reverse this judgment.

Hirschberg, P. J., Jerks, Hooker and Hiller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  