
    Henry Schug, Respondent, v. Charles Wagner, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Sales — warranty — acceptance — loss of profits.
    In an action for a breach of warranty on the sale of a machine, the question of plaintiff’s acceptance thereof is irrelevant as matter of law.
    Where it appears that plaintiff had no orders or contracts for the sale of articles which were to have been manufactured by the machine, damages arising from loss of profits are not recoverable though it appears that plaintiff had done an extensive business in the same class of goods which he had previously manufactured by hand.
    Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury in the Oity Court of the city of ¡¡Slew York, and from an order denying defendant’s motion for a new trial.
    Harry S. Wallenstein, for appellant.
    J. Franklin Tausch, for respondent.
   Bijue, J.

This action was brought to recover damages for breach of warranty connected with the sale of two machines by defendant to the plaintiff.

The defendant raises questions as to the making of the warranty, but I think they were properly resolved by the jury in plaintiff’s favor. The question of the acceptance of the machine is, as matter of law, irrelevant to an action for a breach of warranty. So also the issue as to the breach of warranty was, I think, upon the evidence properly decided in plaintiff’s favor. It is plain, however, that the verdict was excessive. Plaintiff adequately proved certain damages arising out of, loss of wages paid and material destroyed through the defects against which the warranty had been given, and a verdict for the amount and value thereof would have been proper. The record is plain as to the amount of such damage. The jury, however, manifestly aivarded consequential damages arising out of loss of profits on the articles which were to have been manufactured by the machines sold. It is conceded that plaintiff had no orders or contracts for the sale of these articles. He showed only that he had done an extensive business in the same class of goods, which he had previously manufactured by hand, and his principal witness on this branch of the case, a former customer, testified in this regard as follows “ Q. Had Mr. Schug been able to furnish you with machine-made ribbon blocks would you have continued to trade with him? A. Everything being equal, probably we would have.”

Plaintiff’s counsel appeals to the rule laid down by the Court of Appeals in Wakeman v. Wheeler & Wakeman Mfg. Co., 101 N. Y. 205, as justification for the recovery of consequential damages under these circumstances. In that case, however, the plaintiff, who had a contract to sell machines in Mexico, practically as the agent of defendant, was permitted to recover for breach of contract by defendants consisting in refusal to fill plaintiff’s further orders. The correct rule as to damages (in that case measured by the value of the contract to the plaintiff) is tersely stated in the head-note: “ The rule that, damages which are contingent and uncertain cannot be recovered embraces only such as are not the certain result of the breach, not such as are the certain result but uncertain in amountFurther light on this distinction is cast by the citation in the opinion of the views of Grover, J. in Taylor v. Bradley, 39 N. Y. 129; 4 Abb. Ct. App. Dec. 363. Judge Grover says in part: Profits which would certainly have been realized but for the defendant’s default are recoverable. * * * It is not an uncertainty as to the value of the benefit or gain to be derived from performance but an uncertainty or contingency whether such gain or benefit ivould be derived at all. * * sometimes said that speculative damages cannot be recovered because the amount is uncertain, but such remarks will generally be found applicable to such damages as it is uncertain whether sustained at all from the breach.” He further points out that the objection is sometimes as aptly denominated “ remoteness ” as “ uncertainty.”

Applying this distinction to the case at bar, it is evident that plaintiff failed, when measured by this rule, to prove that he lost any profits by reason of the breach of defendant’s warranty. He had no orders for the goods to he manufactured, and all that he proved was that by the bréach he was deprived of the opportunity to* manufacture goods which he had good reason to hope he could sell.

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

Seabuby and Lehman, JJ., concur.

Judgment reversed.  