
    Nathan L. Woolf, Respondent, v. Isaac Hamburger and Others, Appellants.
    First Department,
    January 8, 1909.
    Sale — cancellation of contract before manufacture of goods—seller cannot continue manufacture — damages.
    Where a contract for the manufacture and sale of goods has been repudiated hy the buyer before they have been manufactured by the seller, the latter cannot continue to manufacture and ou completing the order hold the buyer for the full contract price, even if he he entitled to damages for the buyer’s breach. This, because be was bound to reduce the damage. In such circumstances the seller is restricted to a recovery of the damages incurred at the time of the breach of contract.
    Appeal by the defendants, Isaac Hamburger and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of October,. 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of October, 1907, denying the defendants’ motion for a new trial made upon the minutes.
    
      Howard S. Gans, for the appellants.
    
      Emanuel J. Myers, for the respondent.
   Ingraham, J.:

The plaintiff made a contract with the defendants to manufacture 197 men’s suits of clothing of specified sizes and styles, to he made of a material known as “ all wool black Thibet,” at $6.50 a suit. This contract was dated May 3, 1905, and Avas signed by the defendants. The complaint alleges that the plaintiff at the request, instance and order of the defendants manufactured certain goods for which the defendants promised and agreed to pay the sum of $1,235; that the plaintiff manufactured the said goods pursuant to and in compliance with the said order and offered to deliver the same to the defendants, who wrongfully refused to accept the same and returned them to the plaintiff, who now holds said goods for the defendants, and has recovered the full contract price for a complete performance of the contract. The defendants’ answer admits that on or about the 3d of May, 1905, they entered into a contract with the plaintiff whereby it was agreed that the plaintiff should manufacture for the defendants certain clothing of the kind and character set forth in the answer, for which the defendants agreed to pay the sum of $1,235, and allege as a defense and by way of counterclaim that it Avas made a condition of the said contract that the plaintiff should send to the defendants sample swatches or pieces of the fabric of which it was agreed as aforesaid that the garments should be made within a week after May 3, 1905; that the plaintiff Avould send a suit made of the said fabric as a sample of the style and workmanship of the goods within a short time thereafter, and that the goods when manufactured by the plaintiff would be held by the plaintiff for delivery as required by the defendants from and after the 1st of September, 1905; that the plaintiff failed and neglected to manufacture for the defendants garments of the workmanship, character, sizes and made of the materials agreed upon as aforesaid, and has failed to send sample swatches or a sample suit; that on the 28th of August, 1905, plaintiff tendered to the defendants certain goods purporting to be a delivery under said contract, but that said suits Avere not made in a good workmanlike manner and not made of fabric which was all wool; that the defendants have sustained damages by reason of plaintiff’s failure to perform his contract in the sum of $247, for which they demand judgment.

The contract was dated May 3, 1905. Upon the trial the plaintiff proved that he sent a sample suit to the defendants in the latter part of April, before the written contract was made, but he never sent a sample swatch; that the plaintiff received shortly after May 17, 1905, a letter from the defendants, which stated: “We wrote you last week for sample swatches of order for Fall and Winter goods, but they have not arrived up to the present writing, and we shall have to ask you to cancel the order; ” that at the time this letter was received the goods had been purchased and cut up and the suits were being manufactured to fill the order; that the goods had been purchased and cut up before May third, when the written order was executed. By the letter of the plaintiff to the defendants, dated September sixteenth, it appears that the goods at that time had not been finished. There was no evidence as to how far the plaintiff had proceeded in the manufacture of the goods on May seventeenth, when this letter canceling the order was received, and there was no evidence to show how far the merchandise had been manufactured at the time this letter canceling the contract was received, or the damage that the plaintiff would have sustained had he then ceased to manufacture the clothing and had used the material for other purposes. The action is based upon the allegation of a complete performance of the contract, and plaintiff claimed the right to recover the contract price based upon a tender of the manufactured articles to the defendants, as by that tender the title of the manufactured articles had vested in the defendants, so that the plaintiff was entitled to recover the contract price. But long before the articles had been manufactured the defendants had canceled the order, basing it upon the failure of the plaintiff to send samples of the goods out of which the clothing was to be manufactured, which the plaintiff admits that he agreed to send, and which he had not sent as agreed. It is quite clear, I think, upon this state of facts, that while the plaintiff may have been entitled to recover the damages that he had sustained in consequence of the repudiation of the contract by the ^defendants he was not entitled to recover the full contract price. After the contract had been canceled the plaintiff could not go on and complete the manufacture and recover from the defendants the full contract price. He was bound, then, to reduce the damage, and while he may have been entitled to recover the damages that he had sustained up to the time of the cancellation of the contract by the defendants, he was not entitled to furnish the manufactured articles and recover the contract price. I do not find by the record that the plaintiff refused to accept this cancellation of the contract until September sixteenth, when plaintiff wrote to the defendants that he had not received any cancellation nor would he accept any now. But, subsequently, in the letter of September 29, 1905, the defendants insisted on the cancellation of the contract by the letter of May 17, 1905. Certainly, the plaintiff could not accept a cancellation of the order on May seventeenth without objection and then proceed to manufacture the goods as though no such cancellation had been given, and claim the full contract price of the manufactured goods when subsequently completed. In such a case the vendor is restricted to a recovery of the damages which had been incurred by him at the time of the cancellation or repudiation of the contract. (Butler v. Butler, 77 N. Y. 472; Dunham v. Hastings Pavement Co., 95 App. Div. 360.)

I also think that the finding of the jury that the plaintiff performed the contract and that the goods as manufactured and tendered to the defendants complied with it was against the weight of evidence. The contract required that this clothing should be made of “ all wool black Thibet.” The defendants proved and the plaintiff conceded that the material used in the manufacture of this clothing that was tendered was ¡tartly made of cotton, and upon the face of the contract, therefore, it would not have complied with it. To meet this objection there was evidence offered by persons connected with the woolen trade in Hew York that a contract calling for “ all wool Thibet ” clothing was comjDlied with by furnishing cloth made partly of wool and the balance of cotton, if upon the surface of the cloth there was no cotton visible; that whether or not such material called for absolutely all wool depended upon the price paid for it, and what also would appear as the kind of trade in which the purchaser was engaged. As one witness testified: “ The term all wool as applied to a woolen fabric depends altogether on the character of the goods, the price at which the goods may be sold, and the class of trade to which the goods are sold. Certain houses would have a very high standard of all wool. A house like Rogers-Peet or Brokaw would have what they call an all wool fabric which would be a fabric that was positively all wool and would boil out, where a house like King or the Fourteenth Street store, people dealing in a lower grade of merchandise, would accept a piece of cloth that was carded or shoddy, a piece of cloth that you could not pull out a cotton thread out of the fabric. The term all wool was applied to these different fabrics that I have testified to.” The plaintiff’s examiner and sponger testified that he examined the goods purchased by the plaintiff and which were used in making up these garments; that an all wool piece of goods that would stand an absolute chemical test would cost from two to three dollars a yard; that “ the meaning of the term all wool ’ was understood to be the character of materials used in that particular grade of goods at whatever price it was sold for. If it was sold for sixty cents a yard, the buyer of that merchandise would expect an all wool shoddy piece of goods. If it was eighty cents, ninety cents or $1 or $1.10 or $1.20 the piece of cloth would be manipulated so that the cotton would not be seen. * * * Its universal application is goods with wool in it at all, that don’t show cotton on mere inspection ; that was considered all wool and depended on the quality as to the price paid for it; ” that the particular goods inspected by the witness were known in the trade at that time as all wool Tliibets.

This evidence was denied by the defendants and it was shown that if such a custom existed it was not at all universal. This custom was one in the woolen trade and I can find no evidence that it was used in the manufactured clothing trade. So far as appears it was a local trade custom in Hew York and not one which a dealer in Baltimore contracting for the purchase of manufactured clothing could be presumed to contract in reference to. There was nothing said in the contract as to the price of the cloth to be used in the manufacture of this clothing, and as I read the evidence it is that if certain dealers in Hew York who were known to deal in a superior quality of clothing had made such a contract that the manufacturer would be bound to furnish goods that were all wool, while if a dealer in an inferior class of goods made such a contract they would be furnished with material that was not all wool but partly made of cotton. I do not think that a custom based upon such a trade usage can be said to be one which could be applied to a contract made by a purchaser in another city so as to create a presumption that the parties contracted in relation to it, and that a party to a contract that called for clothing to be manufactured of all wool cloth would not be entitled to exact compliance with the contract as made accordiug to the words used in their ordinary significance. It might be that as between a vendor and vendee of woolen goods in Hew York such a custom as was here proved would apply; but I can find no evidence to justify considering it as controlling a contract for manufactured clothing, especially where the vendee was not engaged in business in Hew York and was not presumedly acquainted with the local custom that prevailed in the woolen trade in Hew York. It is quite true that the price that was to be paid for these goods would not justify a presumption that the parties had contracted for a high class of goods, but there is nothing in the case to show that the plaintiff could not have purchased' goods which would strictly comply with the contract at a price that would enable him to manufacture the goods.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event. ‘

McLaughlin, J., concurred ; Pattebson, P. J., Clarke and Houghton, JJ., concurred on first ground of reversal.

Judgment reversed, new trial ordered, costs to appellants to abide event.  