
    Louis P. Reeder, Appellant, v. Robert T. Smith, Defendant, and William W. Ferguson, Respondent.
    
      Contract — assignment of contract to furnish horses —failure of assignee to perform — measure of damages.
    
    
      Reeder v. Smith, 188 App. Div. 674, affirmed.
    (Argued June 9, 1921;
    decided July 14, 1921.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1919, unanimously affirming a judgment in favor of defendant entered upon an order of the court at a Trial Term, setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint. Plaintiff’s assignor had a contract to furnish 5,000 horses at an agreed price per horse. He entered into a contract with defendants by which they agreed to furnish the horses for $8 less than the contract price per horse and fully perform the contract, plaintiff’s assignee to collect and retain the $8. Defendants defaulted and failed to furnish the horses and this action was brought to recover. It was held that after defendants’ breach the burden still rested on plaintiff’s assignor to perform his contract with the purchaser of the horses, and that in so doing any sum he was obliged to pay for the horses above $153 per head constituted his measure of damage against defendants; that until the horses were delivered by plaintiff’s assignor to the purchaser under the original contract there was no basis for any claim on the part of said assignor against defendants either for the $8 per head which he reserved to himself on performance by defendants or for whatever damage he might have suffered as the result of defendants’ failure to assume and carry out the contract.
    
      Martin W. Littleton and Owen N. Brown for appellant.
    
      Martin Conboy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ. Not voting: Hogan, J. Deceased: Chase, J._  