
    Jordan J. Rollins, Appellant, v. Sidney B. Bowman Cycle Company, Respondent.
    
      Entire contract to repair and to ship a bicycle — refusal to ship it — the parchase price of a new bicycle is evidence of its value — measure of damages—questions presented on an appeal from a judgment only — where nominal damages will defeat a counterclaim a judgment dismissing the complaint will be reversed.
    
    In an action brought to recover damages for the breach of a contract it appeared that the plaintiff, who contemplated taking a bicycle trip from Portland, Me., left his bicycle with the defendant corporation in the city of New York, upon its promise to repair thebicycleand ship it, with the express charges prepaid, to Portland, Me., and to charge the expense to the plaintiff’s account, to he paid by him on his return from the journey; that the defendant, after repairing the bicycle, refused to ship it to the plaintiff except upon prepayment of the charges or O. O. D.
    The defendant interposed a counterclaim for the value of the repairs and also for the storage of the bicycle.
    Upon an appeal from the judgment dismissing the complaint it was
    
      Held, that as the contract was an entire one, and as the defendant had been guilty of a breach thereof, no obligation-to pay for the repairs existed upon the part of the plaintiff, and that the defendant's continued possession of the bicycle after such breach was a wrongful one and would not sustain a claim for storage;
    
      That the plaintiff was at least entitled to nominal damages, and as a judgment for nominal damages would have defeated the defendant’s counterclaim and have established the plaintiff’s right to have the bicycle delivered to him upon demand, free of any charge, the- judgment dismissing the complaint should be; reversed under the rule that where it appears that a substantial right is in controversy which may be defeated, prejudiced or impaired by a dismissal of the complaint, and which may be saved by the recovery of a judgment for nominal damages, a judgment dismissing the complaint will be reversed;
    That the plaintiff having, after the defendant’s breach of the contract, purchased, at Portland, a new bicycle similar to the one left .with the defendant, he was entitled to recover the value of the purchased wheel, less its value when .he returned with it to New York city;,
    That the purchase price of the new bicycle was some evidence of its value;
    That, the defendant having knowledge of the use which the plaintiff desired to make of the bicycle, the plaintiff’s obligation to reduce the damage occasioned by the breach did not require him to acquiesce in such breach, pay the bill for repairs and procure the delivery of his bicycle;
    That, although the plaintiff made no motion for a new trial, his appeal from the judgment dismissing the complaint brought up all questions of law presented by the case, including the rulings of the court during the trial and the exceptions taken thereto.
    Appeal by the plaintiff, Jordan J. Rollins, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at. the New York Trial Term.
    The plaintiff, who contemplated taking a bicycle trip from Portland, Me., left his bicycle with the defendant corporation in the city of New York, upon its promise to repair the bicycle and ship it, with the express charges prepaid, to Portland, Me., and to" charge the expense to the plaintiff’s account, to be paid by him on his return from the journey. Notwithstanding this contract, the defendant, after repairing the bicycle, refused to ship it to the plaintiff except upon prepayment of the charges or C. O. D.
    
      Theodore H. Lord, for the appellant.
    
      Richard T. Greene, for the respondent.
   Hatch, J.:

The facts in this case are set out in detail" in its consideration on a former appeal (84 App. Div. 287). They remain the same upon-the present appeal, except so far as relates to the question of damages, to be hereafter noticed.

Upon the former appeal a majority of the court held that plaintiff was entitled to recover substantial damages, but refrained from laying down any precise rule for their measurement. There was no difference of opinion upon the subject of a breach of the contract by the defendant. The difference arose upon the question of damages, the minority view being that while there was a breach of the contract, only nominal damages had been established and that the court would not reverse a judgment even though an exception was properly taken in order to permit the recovery of nominal damages, and such is the general rule. It is subject, however, to the exception that where it appears that a substantial right is in controversy which may be defeated, prejudiced or impaired by a dismissal of the complaint and which may be saved by the recovery of judgment for a nominal sum, the judgment will be reversed when necessary to protect such light. Cases cited in the minority opinion established this rule. The decision by this court upon the former appeal required the learned trial court to submit the case to the jury upon the question of damages and the failure so to do was a disregard of the rule announced upon the former appeal. In any event the court was required either to submit such question to the jury or to direct a verdict in favor of plaintiff for nominal damages upon the proof as it stood. The defendant in its answer to the complaint averred by way of a counterclaim an indebtedness upon the part of the plaintiff for the value of certain work, labor and services which it had bestowed upon the plaintiff’s bicycle, amounting to the sum of twelve dollars, and it further averred a claim for storage at the rate of twenty-five cents a week from July 21, 1899, to the date of the trial of the action, which amounted at the time when the complaint was dismissed to something over fifty dollars. The contract established at the trial was an entire contract and required the defendant not only to make the repairs upon the wheel, but also to ship it to Portland, Me., and this understanding on its part it was bound to fulfill in order to entitle it to be paid for the' cost of the repairs. As it was guilty of a breach of such contract, no obligation to pay for the repairs arose upon the part of the plaintiff, and thereafter the continued holding -of the plaintiff’s. wheel was a wrongful holding, and out of such facts there could arise no legal claim to recover for the storage. As a judgment for nominal damages would have established the plaintiff’s right in respect to these matters and entitled him upon demand to the delivery of his wheel, free of any charge, it is readily apparent that in order to save such right he becomes at least entitled to have such a judgment awarded. This case, therefore, falls within the.exception above noted and requires a reversal of this judgment. (Thomson-Houston Electric Co. v. Durant L. I. Co., 144 N. Y. 34.)

We are also of opinion that the plaintiff’s proof entitled him to a recovery of substantial damages. Upon the former appeal the evidence bearing upon this question so far as.it related to the new wheel which the plaintiff purchased at Portland consisted of an offer to prove the cost of the bicycle, purchased and nothing more. Upon the last trial the plaintiff testified that he purchased the same kind of a bicycle as that which he had left with the defendant to repair and offered to prove what he paid for the same. This was objected to as incompetent, immaterial and irrelevant and not affording a proper measure of damages, and the court sustained the objection. Plaintiff’s counsel asked if it was upon the ground that the cost was no evidence of the value and the court replied : Upon the ground that that is not the proper measure of damages.” The purchase price of property, or what it realizes upon a sale, even under execution, is some evidence of its value. (Montignami v. Crandall Co., 34 App. Div. 228.) It is not controlling and the party who seeks to establish value is required to show what such value is, and what it sold for at a fair sale is some evidence. It is fair to presume that the plaintiff would have supplied such proof had it not been for the announcement of the court that it was not proper, not because it was not evidence of value, but for the reason that it did not furnish the proper measure of damages, and thus the plaintiff was -entirely prevented from pursuing this branch of the subject. In further pursuit of evidence bearing thereon the plaintiff called a witness to testify as to the value of such wheel at second hand in the city of New York after plaintiff returned from his trip, in which he had used the bicycle. This testimony was also excluded and to the ruling thereon the plaintiff excepted. We think this testimony was competent and should have been received. When the defendant made breach of its contract by refusing to ship plaintiff's wheel to Portland, it was informed of the purpose for which the plaintiff desired the wheel to use, and it was chargeable with knowledge that the plaintiff in order to cany out the plan which involved the contemplated use of the wheel would necessarily be compelled to supply himself with one in some other way. It is not suggested how he was able so to supply himself except by purchasing a wheel If this was the only way in which he could obtain it, it was a necessary condition produced by the defendant’s breach' of "its contract. Plaintiff was not called upon to abandon his trip because the defendant did. not fulfill its contract. We think, therefore, that he was authorized to supply himself, with a wheel, and that the measure of damages under such circumstances would be such as naturally flow from the condition thus created. Plaintiff was entitled to supply himself with a wheel which would be as service, able for the purpose intended as would have been the one in the possession of defendant, and was bound to obtain it as cheaply as possible. When he had finished with his trip he was in possession of the wheel, and he was entitled to be' placed in as good a condition as he would have been had plaintiff fulfilled its contract. Such condition is measured by the value of the wheel which he purchased, less its value in reasonable use for the purpose intended when he returned with it to New York. Such sum would substantially measure the damage resulting from the breach. To such sum the plaintiff was entitled, unless the defendant overthrows the case which the plaintiff made.

It is said that plaintiff was bound to reduce the damages occasioned by the breach. And so he was. But such obligation did not require him to make a new contract with the defendant. He was not bound to acquiesce in the breach, pay the bill for repairs and procure a delivery of his wheel. That did not go in reduction of damages for the breach, but would amount to a species of coercion upon the defendant’s part to compel him to pay for the repairs and accept his wheel. He was under no obligation to yield to such demand, even though by yielding he might have diminished .the damages. He was only required to supply himself ' with what ' the defendant refused to deliver as cheaply as possible. His obligation extended no farther. It is- further said that no question is presented upon this appeal^ for the reason that no motion was made for a new trial or order entered thereon, in consequence of which no question is presented to this court. Section 1346 of the Code of Civil Procedure provides for an appeal to the Appellate Division from a judgment which Can be taken from the judgment or upon the facts. If no order is made .for a new trial the facts are not brought up, but the appeal from the judgment is, and with it come all questions of Jaw which the case presents. . This involves the rulings of the court during the course of the trial and exceptions taken thereto. (Boos v. World Mut. L. Ins. Co., 64 N. Y. 236; Third Avenue R. R. Co. v. Ebling, 100 id. 98.)

It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

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