
    Charles H. Stecker, Respondent, v. Weaver Coal and Coke Company, Appellant.
    Second Department,
    January 11, 1907.
    Sale—: measure of damages for breach of contract to deliver goods-at a specified, time.
    A plaintiff suing to recover for the defendant’s breach of contract to deliver goods at a stated time is not entitled to recover prospective or possible profits which he'would have made had'the goods been delivered, in the absence of proof .that the defendant was notified that the purchase was made to fulfill advance ■ retail sales made • by the plaintiff. Moreover, to recover such prospective profits- they must he pleaded as special damage, and when it is shown that .the plaintiff actually received the goods after the day set for delivery and resold the same at retail, he is only entitled to recover the difference between the contract price’and the subsequent wholesale market-price on the day set for delivery; i. «., the amount of the1 fall of the wholesale price'which-he lost by. the failure "of the seller-to deliver on contract time.
    When- a buyer, accepting goods after a delay in delivery, has resold the same, he is not entitled to recover prospective profits for he has realized such profits.
    Appeal by .the defendant,, the Weaver Coal and Coke Com-pony, from a judgment of the Supreme Court in favor of the. plaintiff, entered-in the office of the clerk of the county of Westchester on the lltii day of April, -1905, upon the verdict of a jury, and also from an order entered in ,said clerk’s office on the 27th day of April, 1905, denying the defendant’s motion for á new-trial made upon the minutes. - • ' '
    Action for damages for failure to deliver 308 long tons of coal at Mt. Vernon, Westchester-county, ELY., within tire contract time.
    The plaintiff purchased 308 long tons of anthracite, coal of the defendant on January 13,1993,. at $11.15 a long ton, tó be delivered at a specified dock at Mt. Vernon within the next week.
    ' The-déféndant claimed that the contract was made under a representation of- the plaintiff that Eastchester creek, through which the coal would have to go to Mt. Vernon, was 9 feet deep. The verdict of the jury negatived this.
    A barge was loaded with the coal by the defendant .at Port Liberty, EL J. With the load it drew 8- feet of water. Eastchester creek was only about 7|- feet deep. The towing time to Mt, Vernon is 6 to 8 hours.
    
      After the barge had been loaded the defendant notified the plaintiff that it could not go through Eastchester creek for lack of sufficient depth of water, and that its. contract would therefore, be fulfilled according to Maritime Law by delivering at the nearest accessible port, and it towed the barge to City Island as such- port, and left it. The plaintiff afterwards had it towed tó Mew Rochelle, where 81 tons were discharged to lessen the draft, and thence through Eastchester creek to Mt. Vernon, arriving on February 6th, which was more than two weeks late.
    The defendant claimed that the plaintiff paid for the coal after such notice of lack of water was given, and accepted delivery at City Island. The plaintiff claimed that he had already paid for the coal, and took charge of it only to minimize his damagé, and without waiving the defendant’s breach of the contract. The jury found for the plaintiff on this issue.
    
      Joseph A. Arnold, for the appellant.
    
      Woodson R. Oglesby, for the respondent.
   Gaynor, J.:

The learned trial judge charged the jury that if they found for the plaintiff his measure' of damage was the profit at which he could have sold the coal at retail at Mt. Vernon if it had arrived in contract time, viz., $1,200, plus the difference between the pur-, chase price and the sum he received for the coal at retail,,, viz., $1,400, which would make a total of $2,800, which with interest would be $3,200: These were the figures given by the learned trial judge to the jury. They were within the evidence and were not objected to. The jury followed them and rendered; a vérdict for $3,200.

It will be seen that the learned trial judge made a mistake of $200 in totalling. This with interest from January 21st, 1903, to the trial day has to come off. The prospective or possible profit of $1,200 with interest has also to come off, for the general rule is that such profits are not allowable as an element of damage (Saxe v. Penokee Lumber Co., 159 N. Y. 371) and this case is within such rule. Moreover, the coal was finally received and sold at retail, so that the plaintiff got the retail profit over the.wholesale market price prevailing on the arrival of the coal. A recovery of the difference between the price he: had paid and such subsequent wholesale market price would therefore make him wholé, i. e., it would give him the amount of the fall in wholesale price, which he had lost by the failure to deliver in contract time, and by selling at retail he had already received his retail profit.

The rule of damage given to the jury in respect of the other item of $1,400, i. e., the difference between the purchase price and the sum realized by selling the coal at retail to the best ádvantoge after its arrival, was erroneous, but the error is not' open to ■the defendant’s objection for it is in its favor; it lessens the damage. The- true rule Was the-difference between the purchase price which had been paid by the plaintiff and the wholesale market price on the day the coal should have arrived. This latter was necessarily - (and as'the evidence shows) less than the retail price then prevailing — and the coal was all sold at retail without delay. The wholesale market was the harbor of- New York, and the towing time from there to Mt. Vernon only a few hours.-.

It was not proven that the plaintiff had sold the coal in advance at retail for $15 a short ton, or any other price,'for delivery at the time it Was due under his contract of purchase of the defendant. Nor was the defendant informed that the purchase of it -was being made to fulfill such advance retail sales, winch was -essential in order' to make-them the criterion of damage. Nor does the complaint plead such special damage^ which was essential (Parsons v. Sutton, 66 N. Y. 92; Sprout v. Newton, 48 Hun, 209).

; The judgment should be reversed unless the-plaintiff consent, to reduce it by the sums- of $200 and $1,200- with interest, from. January 21st, 1903, to the trial day, and a proportionate part of the extra allowance.

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

- Judgment and order reversed and new trial granted,, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery in accordance with the opinion of Gayror, J., and extra allowance proportionately, in which case the judgment as modified and the order are affirmed, without costs, of this appeal to either party.  