
    Edward D. Vosbury and Benjamin T. Ash, Respondents, v. Charles A. Mallory, Appellant, Impleaded with William E. Mallory.
    
      Breach of a contract to give the plaintiffs the exclusive sale of a hat manufactured by the defendants—measure of damages—the plaintiffs are not entitled to recover for unsold hats at the price at which they contracted to sell them.
    
    In an action for the breach of a contract made between the plaintiffs, who were the proprietors of a retail hat store in Binghamton, IT. Y., and the defendants, who were the manufacturers of the "Hawes Guarantee Hat,” it appeared that the plaintiffs agreed to handle, advertise and push the sale of such hat in the city of Binghamton and the county of Broome and to make it their "leader” in preference to all other makes of hats, in consideration of which the defendants agreed to sell such hats to the plaintiffs at the price of twenty-four dollars per dozen, the plaintiffs agreeing to sell the hats for three dollars each and the defendants agreeing not to sell such hats to any other person in that locality — the contract to continue in force as long as the plaintiffs performed on their ■ part. The breach consisted of the action of the defendants in refusing to sell the hats to the plaintiffs and in selling the hats to another dealer in the city of Binghamton. It appeared that at the time such breach occurred, the plaintiffs had on hand 197 hats. Nothing in the contract prevented the plaintiffs from thereafter selling the. hats and it was not shown that the breach had in any way depreciated their value.
    
      Held, that the measure of the plaintiffs’ damages was the value of the contract;
    That they were not,, however, entitled to recover the value of the 197 hats still on hand and unsold at the time of the breach, at the_ rate of three dollars for each hat.
    Appeal by thé defendant, Charles A. Mallory, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of'the county of Broome on the 16th day of October, 1901, upon the verdict of a jury.
    
      T. B. Merchant and L. M. Merchant, for the appellant.
    
      Harry C. Walker and Rollin W. Meeker, for the respondents.
   Parker, P. J.:

This action is to recover damages for the breach of a contract which is stated in the complaint, as I analyze and construe the'averments therein, to have been as follows :

The plaintiffs, being retail dealers in hats in Binghamton, IST. Y., agreed with the defendants, who were manufacturers of the “ Hawes Guarantee Hat,” that they would handle, advertise and push the sale of such hat in such city and the county of Broome, and make it their “ leader ” in preference to all other “ makes of hats; ” and, in consideration thereof, the defendants agreed to sell to the plaintiffs such hats as they should, from time to time, order at the pi’ice of twenty-four dollars per dozen, the plaintiffs, however, agreeing to sell the same at retail for three dollars each, and the defendants further agreeing that they would sell such hat to no one in that city or locality other than the plaintiffs. Such arrangement was to continue so long as the plaintiffs “performed the conditions of said agreement on their part.”

The phraseology of the complaint ill some parts would seem to charge that the plaintiffs were appointed the exclusive agents of the defendants to sell such hats for them in such county, but the explicit statement is made therein that the hats were to be purchased by the plaintiffs at the price of twenty-four dollars per dozen, and I am clearly of the opinion that under the arrangement as therein intended to be stated the hats were delivered to the plaintiffs, pursuant to their orders as purchasers thereof, aiid became their property.

The evidence given by the plaintiffs on the trial establishes a contract such as I have above stated, and that evidence is not contradicted. Such arrangement was made in March, 1897, and was acted upon by both parties until in January, 1899. During such period the plaintiffs advertised the hat largely and made it their “ leading ” hat ■ and substantially performed the arrangement on their part. It appears that during such period they had ordered in* the aggregate about 500 hats, and at the time of the refusal of the defendants to further fill their orders they had on hand 197 of such hats unsold.

In January, 1899, the agent of the defendants with whom this arrangement had been made visited the plaintiffs and was informed by them that they were not then prepared to say whether they could further continue the arrangement; that a dissolution of their firm was in contemplation.. It was thereupon agreed between them that the plaintiffs would then give an order for hats to be used in the coming spring trade, to be considered a conditional one, and that, if the plaintiffs should within one month notify him that they wished to continue the arrangement, the order should be filled and the arrangement be continued. If they did not so notify him, the order was not to be filled, and the agreement was to end. They thereupon gave to such agent an order for eight or ten ' dozen hats conditioned as above stated. Within the month these plaintiffs notified the defendants that they wished to continue the arrangement, and to have their last order given to their agent Brainard filled. The defendants replied refusing to fill any further orders by them, and notified them that they had made arrangements to thereafter sell the hats to another party in such city. Thereafter no hats have been furnished to these plaintiffs, and the other party has been the only one in the city to whom they have been furnished. In March following this action was commenced. It was brought to trial in September last; when the plaintiffs rested, the defendants moved for a nonsuit which the trial court denied. 3STo evidence being offered by the defendants,-the case was sent to the.jury upon the question of damages only; The jury returned a verdict of $708 against the defendants, and from, the judgment entered thereon 'this appeal is taken. ■

The defendants claim that the agent, Brainard, had no authority to bind them by the contract which he made. But it is not contradicted but that they adopted and acted under it for about two years; and also they give as an excuse for not further selling' to the plaintiffs that his agreement with the other party was controlling upon them.

They further claim that there was no time specified in the agreement during which it was to continue, and that, therefore, the defendants were at liberty to withdraw from it at any time. But the plaintiffs, testify that it was to continue so long' as they were willing to advertise and make it their leading hat. The parties might make such an agreement if they desired, and inasmuch-as the plaintiffs’ evidence to that effect is not disputed, it was properly considered by the trial court to have been so agreed.

It seems, therefore, that a contract was proven upon the trial, such as is above stated; that it was still in force; and that a breach of it was fully established. The nonsuit was, therefore, properly refused.

The only remaining question is, whether the. trial court properly instructed the jury as to the measure of damages which they were to apply to the case..

It may be stated generally that, upon the repudiation of such a Contract as is here shown, the value of such contract is the measure of damages to which the plaintiff is entitled. He has been deprived of such contract and he should "have its value in lieu thereof. That value must be ascertained by the jury from the nature of the contract, and the consequences naturally and plainly traceable to its breach. There is always more or less difficulty in s.uch cases in determining what elements may be considered without violating the rule that gains or benefits which are uncertain and speculative should not be estimated. Each case depends upon its own peculiar features. The general rules concerning such cases are found in Wakeman v. Wheeler & Wilson Mfg. Co. (101 M. Y. 205, 210); Bernstein v. Meech (130 id. 354); United States Trust Co. v. O'Brien (143 id. 285), and an application of such rules to this case is not necessary here, nor could it intelligibly and accurately be made until the facts of this case are more fully presented.

It is clear, however, that the trial court erred in its instruction to the jury that they might allow to the plaintiffs the value of the 197 hats still on hand and unsold at the time of the breach at the rate of three dollars for each hat. Those hats had been purchased and paid for by the plaintiffs, and were their property. It was not part of the defendants’ contract to guarantee their sale, nor, in any event, to receive them back at the rate of three dollars apiece,, nor at any price whatever. There was nothing in the contract which prevented the plaintiffs selling these hats after its breach at three dollars apiece, or at such price as they chose to sell them. And I am unable to understand why they could not as readily sell them during the year 1899, with another party in the city selling the new style of that year, as if they themselves were selling such new style. But be that as it may, there is no evidence in the case that the breach of the contract in any way depreciated the value of such hats. On the contrary, the evidence shows that the plaintiffs, at once upon the refusal of the defendants to continue the arrangement, packed them up and made no effort whatever to dispose of them. Nothing whatever appears to show what they lost, if anything, because of such depreciation. They are still the plaintiffs’ hats. The plaintiffs still hold them as such, and yet they have recovered from the defendants the full value at the rate of three dollars for each of them. Certainly, such an item was not properly considered in ascertaining the value of this contract to the plaintiffs at the time it was broken, nor was it admissible under any of the rules recognized in the cases above cited. Such item makes up nearly six-seventlis of the verdict rendered. It was clearly error to instruct the jury that it was a proper item for them to consider in arriving at the damages, and for that reason this judgment must be reversed.

All concurred.

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