
    Terrence J. McManus, Respondent, v. American Woolen Company of New York, Appellant.
    First Department,
    May 15, 1908.
    Contract — damages — market price — specific sales.
    Where in an action to recover damages for breach of contract to deliver goods it appears that the goods have a market price, it is error to receive evidence of specific sales made by plaintiff in reliance on the contract and of damage sustained by loss of profits.
    It is also error to permit the jury to consider evidence of specific sales made in January and February as bearing on the market price from April to October.
    Appeal by the defendant, the American Woolen Company of Hew York, from a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 14th day of June, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term, in so far as said judgment is in favor of the plaintiff, and also from an order entered in said clerk’s office on the 29th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ralph Wolf [Daniel P. Hays and Edwin D. Hays with him on the brief], for the appellant.
    
      Frederick Wiener, for the respondent.
   Laughlin, J.:

This is an action by a vendee of merchandise to recover damages of his vendor for its failure to deliver woolen goods known as “ tans ” and “ castors ” in accordance with the terms of two orders in writing, constituting the contract. Both orders were given on the same day. One of the orders was for 392 pieces of “ castors ” at $1.35 per yard and the other order was for 146 pieces of “ tans” at $1.55 per yard, sample pieces to be delivered in January, February and March, and the balance between the first day of April and the first of October. The defendant shipped and delivered 62 pieces of “ castors ” and 3 pieces of “ tans,” but failed to ship or deliver the balance. The contract provided that the pieces were to average 40 yards, but those delivered averaged about 50 yards. The plaintiff gave evidence tending to show that from April to October the market price of both classes of goods steadily advanced, the market price of “ castors ” obtaining a maximum of from $2.10 to $2.25 per yard, and $2.35 per yard for “ tans,” and that the average lowest market price for “castors” at any time during this period was about $1.62^ to $1.70 per yard, and the lowest market price for “tans ” during the same period -was $1.60 per yard, and that upon the basis of the lowest market price he sustained a loss of $5,739, being the difference between that and the contract price. The plaintiff, in addition to showing that there was a market price for similar goods at all times during the period for delivery specified in the contract, was permitted to show, over the defendant’s objection and exception duly taken, that the evidence was immaterial and not the proper measure of damages; that, in reliance upon these contracts, he placed three orders for the sale of part of the goods, one with Adams & Co. for 40 pieces of “ castors ” at $2.10 per yard, and 60 pieces of “ tans ” at $2.35 per yard, deliveries to be made during the months of May, June, July and August, another with Brady & Funt for 50 pieces of “castors” at $1.62¿ per, yard and 50 pieces of c“tans” at $1.90 per yard, sample pieces to be delivered in February and March, and the goods themselves in May, June, July and August, and the third with Edward Bloch for 15 pieces of “castors” at $1.62|- per yard, and 15 pieces of “tans” at $1.80 per yard, which were the prevailing market prices in January and February, and that he was unable to make any deliveries under these orders, and sustained damages thereby in loss of profits over and above the lowest market price aggregating about $2,200. The .jury awarded a verdict in favor of the plaintiff for $5,658.62, with interest from October 1, 1902, which was computed by consent, and added without objection before the jury were discharged, making a total recovery of $6,875.22. The court, in submitting the case to the jury, drew attention to the fact that plaintiff claimed damages in the sum of $7,939, estimating the pieces at 40 yards, and $9,872.50, estimating the pieces at 50 yards. These figures embraced the profits on the three sales, aggregating $2,200 in addition to the difference between the contract priqe and the lowest market price at which plaintiff could have gone into the open market and have purchased similar goods to fill the orders placed with others. The court, in the main charge, said to the jury: “ The general rule, as I have stated, is that the party injured by a breach of contract is entitled to recover all his damages, and that includes gains prevented as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach. It is only uncertain and contingent profits, therefore, which the law excludes, not such as are the immediate and necessary result of the breach of contract. They may be fairly supposed to have entered into the contemplation of the parties when they made their contract, and if capable of being definitely ascertained by reference to established market rates, should be awarded the plaintiff.” The court thereafter, at the request of counsel for the defendant, instructed the jury that if they found that the goods had a market price, the plaintiff could not recover both general damages, being the difference between the contract and market price and profits lost, or which might have been' made by him, or which were actually made by him. The court also- instructed the jury, at the request of counsel for the defendant, that, in determining the question of market value, they should not take into consideration “ prices at which plaintiff claims he may have sold some of thesd goods to customers.” Oonnsel for the defendant also asked the court to instruct the jury that, in considering the question of market value, they should not consider the testimony of the plaintiff in regard to the three sales hereinbefore mentioned. This request was declined, and an exception was duly taken. The court also declined to charge a specific request, made by counsel for the defendant, that if the goods had a market value at the time and place of delivery, then the only damages which the plaintiff may recover is -the difference between the contract price and the market value of the goods at the time and place of delivery, and they must eliminate in the computation of damages any and all testimony as to profits which plaintiff might have made in the event that the goods sold by defendant to him had been delivered; also in that event they must eliminate and disregard the testimony as to the resales claiméd to have been made by the plaintiff of the goods purchased from the defendant, and also in that event they must disregard the testimony in regard to the prices realized by the plaintiff on the resale of the goods actually sold and delivered by defendant to him; also in that event they should disregard in the computation of plaintiff’s damages the profits claimed to have been made by him on the resales of the goods actually sold and delivered by defendant to him. It sufficiently appears that the goods actually delivered by defendant were not considered in estimating the damages.

The defendant gave evidence tending to show that the market price of the goods during the period during which delivery was to be made was much lower than that shown by the evidence introduced in behalf of plaintiff. Upon the record and charge it is impossible to determine accurately the basis upon which the jury computed the plaintiff’s damages. It appearing that the goods had a market price, it was error to receive evidence of the specific sales, and it was also error to submit that evidence to the jury. Moreover^ it appears that the time of delivery, pursuant to the three orders placed by the plaintiff, was different from the time of delivery under the contracts between plaintiff and defendant. Under the contracts the defendant was at liberty to deliver the goods at any time between the first day of April and the first day of October. The court also erred in permitting the jury to consider the testimony of the three specific sales made in January and February as bearing upon the market price during the period of delivery specified in the contract, which did not Commence until the first day of April thereafter.

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

Ingraham,'McLaughlin, Clarke and Scott, JJ., concurred.

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