
    Frederick Haskell and another v. Daniel F. Hunter and others.
    
      Damages for breach of contract to sell ancl deliver. In an action for damages for ■breach, of a contract to sell and deliver lumber, evidence that a portion of the lumber bad been delivered to the plaintiffs at a place other than that specified in the contract, and subject to a heavy bill for freight in consequence thereof, in the absence of any proof that the plaintiffs had accepted the same in satisfaction to that extent of the contract, or had waived their right to compensation to that extent for the breach thereof, does not authorize the court, against objection, to direct the jury, in computing the damages, to deduct the amount so delivered from the whole amount to be delivered by the contract.
    
      Measure of damages: Wholesale price. An instruction to the jury in such case that the proper measure of damages is the difference between the contract price of the lumber not delivered and the wholesale price at the place of delivery is erroneous. The true measure of damages is the difference between the contract price and what it would have cost the plaintiffs to procure, at the place of delivery, and at the time or times when it was reasonable and proper for them to supply themselves, lumber of the hind and quality they were to receive on the contract; and if it were impracticable for them to thus supply themselves, except at retail rates, they were entitled to demand those rates of defendants.
    
      Heard July 8.
    
    
      Decided July 12.
    
    Error to Ionia Circuit.
    This was an action of assumpsit, brought by Frederick Haskell and John Barker, against Daniel F. Hunter, Wilson Homer, Noah Hitchcock, Milton W. Taylor and Thomas Hubbard, to recover damages for breach of a contract on the part of the defendants to sell and deliver to the plaintiffs, at the Michigan Central Railroad dock at; Chicago, Illinois, at the opening of navigation, in 1864, or soon thereafter, one hundred and fifty thousand feet of first and second clear pine flooring, at the price of twenty-six dollars per thousand feet, to be paid on delivery.
    The cause was tried by a jury, and, upon the trial, the plaintiffs introduced evidence tending to show that in the month of February, 1864, they purchased of the said defendants, one hundred and fifty thousand feet of pine flooring, consisting of two grades, first and second clear, and one-half of each kind; said lumber to be delivered at the Michigan Central Railroad dock, in Chicago, at the opening of navigation, or soon thereafter, at twenty-six dollars per thousand feet, to be paid for on delivery; that the said plaintiffs, at the time they purchased the said lumber, were engaged in the exclusive business of manufacturing railroad cars, and resided at Michigan City, Indiana, and purchased this lumber for the purpose of using it .in their business exclusively; that this contract for the sale and delivery of the lumber was negotiated and concluded by a series of letters between the parties; that said defendants, after repeated importunities, did, during the months of July and August, 1864, send to the plaintiffs, by a mistake as to the route, by the way of Detroit to Michigan City, eighteen thousand two hundred feet of said lumber, for which the said plaintiffs were compelled to pay, as freight, thirteen •dollars and twenty-nine cents per thousand feet in order to get it, as they wanted to use the same; that on August 16, 1864, the defendants drew on the plaintiffs for the sum of one thousand dollars at three days after sight, and at the same time communicated to the plaintiffs that they had just shipped sixty thousand feet more of the lumber to the plaintiffs; that at the time the said plaintiffs received the ■said draft of one thousand dollars, they had not received any of the lumber according to said contract, and they refused to honor said draft, for the reason that said lumber had not been delivered according to contract; that upon the refusal of the plaintiffs to honor said draft, the defendants stopped the sixty thousand feet of said lumber shipped as aforesaid, in transitu; that, after the stoppage thereof, the plaintiffs frequently, by letter, requested the defendants to ■deliver the whole amount of said lumber according to said contract, and that the defendants thereafter, to wit: on October 10, 1864, utterly refused to fulfill the said contract for the sale and delivery of the same; that on account of the failure of the •defendants to deliver the lumber according to said contract, they were obliged to purchase lumber at much higher rates to carry on their business, viz: at sixteen dollars per thou.sand feet, retail price, more than the contract price agreed upon for said lumber, to get sqch lumber as they had contracted for, and such as they could use in their business; that the quality of this lumber above specified, was much more difficult to be obtained, as there were a great many in the city of Chicago who used this kind of lumber to make siding; that they placed dependence upon getting this lumber from the defendants and omitted getting it elsewhere, excepting what they wanted for immediate use, and thereby lost the advantage of an earlier market; and that they had to buy the lumber needed to supply the place of the lumber thus purchased of defendants, at retail, and paid therefor retail prices. Evidence was given of the retail and also of the wholesale price of such lumber in the Chi- ’ cago market.
    The circuit judge charged the jury, among other things, as follows, to wit: “If you find the contract was not fulfilled by the defendants, the plaintiffs would be entitled to a judgment for the difference in value between the contract price, twenty-six dollars, and the market price at the point of delivery, and in estimating the amount of damages you would deduct the eighteen thousand two hundred feet from the one hundred and fifty thousand feet, and render such a verdict per thousand feet as you find from the testimony, taking the contract price and market value as a basis of computation, and figuring upon one hundred and thirty-one thousand eight hundred feet.” To this charge the counsel for the plaintiffs excepted.
    And the court, being requested by the defendants’ counsel to call the attention of the jury to the wholesale and retail prices, and that they, the defendants, could only be charged with the wholesale prices, charged on this proposition that the jury were to inquire as to the market value in Chicago, and that, as a matter of law, the wholesale price is the measure of damages. To this instruction of the court the counsel for the plaintiffs excepted.
    The jury rendered a verdict for plaintiffs, assessing their damage at the sum of two hundred and sixty dollars, and judgment was entered accordingly. The plaintiffs bring the cause to this court on writ of error.
    
      Wells é Morse and L. B. Soule, for plaintiffs in error.
    
      
      Lemuel Gluts, for defendants in error.
   Cooley, J.

The circuit court was clearly in error in directing the jury to deduct the eighteen thousand two hundred feet of lumber received by the plaintiffs from the whole amount to be delivered, when they entered upon a computation of damages. The effect of the instruction was to deprive the plaintiffs of any recovery in respect to this portion of the lumber, as if it had been delivered in compliance with the contract and accepted by the plaintiffs in satisfaction of the undertaking of the defendants to that extent. But the. record shows that it was not delivered as agreed, and that the plaintiffs were subjected to a heavy bill for freight in consequence; and there is nothing to show that there has been any waiver by the plaintiffs of their right to be compensated for the loss sustained by this bre'ach of the agreement.

We think the court erred, also, in instructing the jury that in getting at the proper measure of damages in respect to the lumber not delivered, they must allow the plaintiffs only the difference between the price they were to pay for the lumber and the wholesale price at the place of delivery. The question is not one of wholesale price or retail price, and an instruction to measure the damages by either might be erroneous. The true test of proper compensation in such cases is what it would have cost the plaintiffs to procure at the point of delivery and at the time or times when it was reasonable and proper for them to supply themselves, lumber of the kind and quality they were to receive on the contract; and deducting the contract price from this cost, we have the exact amount of damages suffered by them. So large an amount of lumber as was covered by this contract, they might, perhaps, have been able to procure at cargo prices; but we have no right to presume this, and if it were impracticable to supply themselves, except at retail rates, they were entitled to demand those rates of defendants.

The judgment must be reversed, with costs, and a new trial awarded.

The other Justices concurred.  